Jammu & Kashmir High Court
Yugal Kishore vs State Of Jammu And Kashmir on 7 November, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 04.10.2023
Pronounced on:07.11.2023
SWP No. 1977/2009
Yugal Kishore, Age 52 years .....Appellant(s)/Petitioner(s)
S/o. Sh. Puran Chand
R/o. 193 Rehari Colony, Jammu
Through: Mr. Abhinav Sharma, Sr. Adv. with
Q
Ms. Saba Atiq, Adv.
vs
1. State of Jammu and Kashmir, th. ..... Respondent(s)
Commissioner/Secretary
Agriculture Production and
Cooperative Department, Civil
Secretariat Srinagar,
2. Registrar, Cooperative Societies
Srinagar
3. Citizens Cooperative Bank Ltd.
th. its Managing Director, 117-
A/D Gandhi Nagar, Jammu
4. Managing Director, Citizen
Cooperative Bank Ltd. 117-A/D
Gandhi Nagar Jammu
Through: Mr. K. D. S. Kotwal, Dy.AG for Nos. 1 & 2
Mr. Sanjay Kakkar, Adv. for Nos. 3 and 4
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner has challenged order bearing No. Adm/7160 dated 28.08.2009 issued by respondent No. 4, whereby the petitioner has been dismissed from services of Citizens' Cooperative Bank (hereinafter to be referred as the respondent-Bank). A further direction has been sought by the 2 SWP No. 1977/2009 petitioner upon the respondents to allow him to perform his duties as an employee of the respondent-bank and to release all the consequential benefits in his favour w.e.f. 21.12.2006.
2. Briefly stated, case of the petitioner is that while he was discharging his duties as Manager Scale-III with the respondent-bank, an order bearing No. Adm/7735-36 dated 21.12.2006 came to be issued by respondent No. 4, whereby he was placed under suspension. In terms of order bearing No. Adm/86 dated 07.04.2007, a charge sheet was served upon by the respondents and he was directed to submit his reply within seven days. Vide letter dated 20.04.2007, the petitioner requested respondent No. 4 to allow him to inspect the entire original record and to grant him at least one month's time to submit his reply to the charge sheet. According to the petitioner, another communication bearing No. Adm/504-05 dated 30.04.2007 was issued by respondent No. 4 and the petitioner was asked to submit reply to the charge sheet within a week's time. Thereafter, in terms of another communication bearing No. Adm/633-34 dated 05.05.2007, a supplementary charge sheet was served upon the petitioner. It is further alleged that without allowing the petitioner to inspect the original record, a consolidated charge sheet consisting of original charges and supplementary charges was served upon him in terms of communication bearing No. Adm/2043 dated 30.06.2007 and it was also conveyed by respondent No. 4 in the said communication that he has appointed himself as Enquiry Officer to conduct the enquiry against the petitioner.
3. Another communication bearing No. Adm/2215 dated 10.07.2007 was addressed by respondent No. 4 to the petitioner in his capacity as 3 SWP No. 1977/2009 Enquiry Officer and he was asked to furnish reply to the charge sheet within a period of three days. In response to the said communication, the petitioner vide his communication dated 21.07.2007 requested respondent No. 4 not to proceed ahead with the enquiry proceedings as the same are in violation of principles of natural justice. A further request was made by the petitioner that in the absence of payment of subsistence allowance, it was not possible for him to defend the enquiry proceedings.
4. It appears that the petitioner challenged communications dated 07.04.2007 and 30.06.2007 issued by respondent No. 4 by way of a suit before Munsiff Jammu, but the plaint was rejected under Order 7 Rule 11 of the Code of Civil Procedure in terms of judgment and decree dated 31.01.2008 on the ground that the suit is premature. The petitioner is stated to have filed an appeal against the said judgment, but in the meantime, impugned order dated 28.08.2009 came to be passed by respondent No. 4, whereby the petitioner was dismissed from service.
5. The petitioner has challenged the impugned order on the grounds that while conducting the enquiry proceedings against the petitioner, the respondents have not adhered to Rule 19 of the J&K Cooperative Societies Service Rules, 1988 (hereinafter to be referred as the Rules) inasmuch as the charge sheet was not accompanied with statement of imputations of misconduct nor any list of witnesses was accompanied with the charge sheet. It has also been contended that the petitioner has been denied the right to submit a proper reply to the charge sheet. The petitioner has further contended that respondent No. 4 could not have appointed himself as an Enquiry Officer and the said action of respondent No. 4 is violative of 4 SWP No. 1977/2009 principle of natural justice. It is also contended that an Enquiry Officer could not have been appointed without obtaining a reply to the charge sheet from the petitioner. Thus, Rule 19 of the Rules and the principles of natural justice stand violated. It has been further contended that the petitioner has not been given opportunity to inspect the original record nor he has been allowed to participate in the enquiry proceedings. Another ground for challenge of the impugned order is that notice proposing major penalty of dismissal against the petitioner has not been served upon him. It has also been contended that without seeking approval from the Selection Board constituted in terms of Rule 6 of the Rules, the respondents could not have passed the impugned order of dismissal. It is further contended that because of non-payment of subsistence allowance to the petitioner, the enquiry proceedings stand vitiated.
6. The respondent-bank has contested the writ petition by filing its reply thereto. In the reply, it has been submitted that the petitioner has an efficacious remedy of appeal available to him in terms of Rule 21 of the Rules and without availing the remedy of appeal, the instant writ petition is not maintainable. According to the respondents, the petitioner avoided to submit his reply to the charge sheet and in spite of this, the Enquiry Officer as well as Disciplinary Authority afforded a number of opportunities to the petitioner to enable him to file reply to the charge sheet, which he failed to do. It has been also contended that enquiry was conducted by Mr. Ashwani Kapoor Manager Inspection, who was appointed as an Enquiry Officer. A number of notices were issued to the petitioner but he did not present himself before the Enquiry Officer, as a result of which, the enquiry was conducted 5 SWP No. 1977/2009 in ex parte and report dated 30.04.2009 was submitted by the Enquiry Officer before the respondent-bank.
7. It has been further submitted that on the basis of the report of the enquiry, notice bearing No. Adm/5303 dated 16.07.2009 was served upon the petitioner, whereby he was asked to show cause against the proposed penalty of dismissal. It has been submitted that the petitioner did not respond to the said notice, whereafter, the matter was placed before the Board of Directors in its meeting dated 26.08.2009. On the basis of the resolution passed by the Board of Directors, impugned order of dismissal of the petitioner came to be issued. According to the respondents, the petitioner was found guilty of various acts of misfeasance and malfeasance having misappropriated huge amount of money of the bank and it is because of this, he was placed under suspension and thereafter a detailed enquiry was conducted against him in which the charges levelled against him were found established.
8. I have heard leaned counsel for the petitioner and perused the record of the case including the record of the enquiry produced by the learned counsel for the respondents
9. It appears that vide order dated 13.09.2017, this Court held the writ petition to be maintainable on the ground that the petitioner is seeking enforcement of statutory rules i.e. J&K Cooperative Societies Service Rules, 1988, inasmuch as he is alleging violation of the said Rules. However, it was held that in view of the availability of alternative remedy of appeal in terms of Rule 21 of the Rules, the writ petition is not maintainable and the petitioner was accordingly left free to avail the alternative remedy. 6 SWP No. 1977/2009
10. The aforesaid order came to be challenged by the petitioner by way of an appeal before the Division Bench of this Court. Vide order dated 15.03.2018, the Division Bench, while setting aside the order dated 13.09.2017 passed by this Court held that issue as to whether an alternative remedy is available to the petitioner is tied up with the issue as to whether the order of dismissal has been passed under the Rules, particularly Rule 19. It was further observed that if on merits it is found that the order of penalty has been passed under Rule 19, then Rule 21 would be applicable and the petitioner would have the remedy of appeal. After making the aforesaid observations, the case was remanded to this Court.
11. Coming to the merits of the case, if we have a look at the contents of the writ petition, the petitioner has clearly based his grounds of attack against the impugned order of dismissal on the Rules of 1988. So, the case of the petitioner is that Rules of 1988 are applicable to the instant case. There is no dispute to this position from the respondents. In fact, both the learned counsels have placed reliance upon the judgment of the Division Bench of this Court in the case of N. K. Mehta and others vs. State of Jammu and Kashmir and others, 2010(1) SLJ 105. In the said case, the Division Bench has held that Rule 26 of Rules of 1988 has repealed all existing rules. It has been further held that after the promulgation of 1988 Rules, the service conditions of Cooperative Societies are to be governed by the said Rules and all the existing rules/by laws, governing the service conditions of employees of a Cooperative Society to the extent they are inconsistent with 1988 Rules would stand repealed. A similar view has been taken by a Division Bench by this Court in Ved Paul Sharma vs Citizens Cooperative Bank Ltd and 7 SWP No. 1977/2009 others, (LPA(W) No. 557/2009, Decided on 30.04.1999) 2000 SLJ 117, wherein it was held that the respondent-bank is governed by the service conditions as enumerated in Rules of 1988. Therefore, there is no dispute to the legal position that the case at hand has to be dealt with and governed in accordance with the provisions contained in 1988 Rules.
12. Once it is not in dispute that the service conditions of the petitioner were governed by the Rules of 1988 and the impugned order has been passed by the respondent-bank in exercise of its power under Rule 19 of the Rules, Rule 21 of the Rules which provides for a remedy of appeal against an order passed under Rule 19 of the Rules of 1988 would come into play. However, learned Senior Counsel appearing for the petitioner has contended that in the instant case, the respondent-bank has proceeded against the petitioner in violation of the statutory Rules of 1988 and in violation of principles of natural justice, therefore, in spite of availability of alternative remedy of appeal under Rule 21, the petitioner is entitled to maintain the instant writ petition. In this regard, the learned counsel for the petitioner has laid emphasis on the following submissions:
i) That the petitioner was not given sufficient opportunity to file reply to the charge sheet and without waiting for his reply, the disciplinary authority i.e. respondent No. 4 appointed himself as the Enquiry Officer which is a gross violation of the principle of natural justice.
ii) That the petitioner was not given an opportunity to participate in the enquiry proceedings to cross examine the witnesses and to produce his defence which is in violation of Rule 19 of the Rules.8 SWP No. 1977/2009
iii) That notice proposing penalty of dismissal has not been served upon the petitioner and without seeking his reply, the impugned order of dismissal came to be passed, which is a violation of Rule 19 of the Rules.
iv) That the impugned order of dismissal passed by the respondent-
bank does not have approval of the Selection Board in terms of Rule 19 of the Rules, therefore, it is non est in the eyes of law.
v) That due to non-payment of subsistence allowance to the petitioner, the enquiry proceedings stand vitiated.
13. A perusal of the record of the enquiry reveals that in terms of communication dated 07.04.2007 issued by respondent No. 4, a detailed charge sheet was issued to the petitioner and he was asked to furnish his reply to the charges within a period of seven days. The charges were accompanied by 23 leaves comprising the record on the basis of which charges were framed. The petitioner vide his letter dated 20.04.2007 conveyed to respondent No. 4 that he may be allowed to inspect the original record and that at least one month's time be granted to enable him to submit reply to the charge sheet. This letter was responded to by respondent No. 4 vide his communication dated 30.04.2007 and it was conveyed to the petitioner that whole record pertaining to the charges containing 23 enclosures, has been enclosed with the charge sheet and it was also conveyed in the said communication that the petitioner is allowed to visit Branch Office, Kanak Mandi to inspect the relevant record. Further time of seven days was granted to the petitioner to submit his reply to the charges. Vide letter dated 05.05.2007, issued by respondent No. 3, a supplementary charge 9 SWP No. 1977/2009 sheet was served upon the petitioner is which certain additional charges were conveyed to the petitioner and along with the said communication, three leaves of documents were forwarded to the petitioner on the basis of which, additional charges were framed and he was given another seven days' time to submit his reply, which he did not do.
14. The record further shows that on 30.06.2007, respondent No. 4, while appointing himself as Enquiry Officer, served a consolidated charge sheet upon the petitioner along with 26 leaves comprising photocopies of the material evidence in support of these charges and the petitioner was asked to submit his reply along with material evidence within a period of four days. The record shows that on 10.07.2007 another letter was addressed by respondent No. 4 to the petitioner asking him to furnish his reply to the charges within a further period of three days. At this stage, the petitioner submitted his reply dated 21.07.2007 in which the petitioner highlighted that respondent No. 4 could not appoint himself as Enquiry Officer and that the enquiry proceedings have been conducted in violation of principles of natural justice.
15. The record further shows that enquiry did not proceed further for some time and ultimately vide letter dated 21.01.2009, Sh. Ashwani Kapoor, Manager Inspection was appointed as new Enquiry Officer. The new Enquiry Officer it seems has issued a number of communications to the petitioner which include communications dated 28.1.2009, 24.02.2009, 19.03.2009, 11.04.2009 and 05.05.2009, but the petitioner has not responded to these communications. It also seems that the Enquiry Officer has 10 SWP No. 1977/2009 published notice to the petitioner asking him to participate in the enquiry proceedings and the said notice was published in the Newspaper "State Times". The record reveals that the petitioner has addressed a couple of communications to the Enquiry Officer seeking more time to appear before him on the ground of his ill health. Ultimately, the petitioner appears to have addressed a communication dated 30.04.2009 to the Enquiry Officer in which he reiterated that he was not given chance to inspect the record and that the proceedings were conducted in violation of the rules and principles of natural justice and that he was not in good health. These communications were responded to by the Enquiry Officer in terms of his communication dated 05.05.2009 wherein the petitioner was informed that the enquiry was conducted in ex parte as the petitioner did not participate in the same despite service of the notices and that enquiry report has been submitted on 30.04.2009
16. From the aforesaid facts that have come forth upon perusal of the record produced by the respondents, it is clear that the petitioner was all along aware about the enquiry proceedings. He has corresponded with respondent No. 4 as also with the Enquiry Officer during the period the enquiry was under process. He chose not to file any reply to the charges and he also chose not to participate in the enquiry proceedings. So, it is not a case where the petitioner has not been given an opportunity of presenting his defence against the charges levelled against him or he has been deprived of his right to participate in the enquiry proceedings. The question whether the petitioner was actually suffering from any ailment in the absence of any medical record cannot be commented upon by this Court in these 11 SWP No. 1977/2009 proceedings. In fact, it has not even been pleaded by the petitioner that due to his ailment, he could not participate in the proceedings. Thus, it cannot be stated that the respondents while conducting the enquiry proceedings against the petitioner, have violated the principles of natural justice or Rule 19 of the Rules.
17. Much emphasis has been laid by the learned Senior Counsel for the petitioner on the contention that respondent No. 4 who is Disciplinary Authority could not have appointed himself as an Enquiry Officer, that too prior to submission of reply to the charges by the petitioner. In this regard, if we have a look at letter dated 30.06.2007, whereby respondent No. 4 who is the Disciplinary Authority, has appointed himself as Enquiry Officer, it is clearly indicated by respondent No. 4 in the said letter that the petitioner has not submitted his reply to the charges levelled and in spite of having been permitted to attend the bank for inspecting the original record, he did not inspect the record. It is in these circumstances that respondent No. 4 has appointed himself as Enquiry Officer. As already stated while narrating the facts emanating from the perusal of the record of the enquiry produced by the respondent-bank, the first charge sheet was served upon the petitioner under the cover of letter dated 07.04.2007 and he was asked to submit his reply within seven days. In terms of letter dated 30.04.2007, further seven days' time was granted to the petitioner. Vide letter dated 05.05.2007, the time was extended by another seven days. In spite of all these opportunities, the petitioner failed to submit his reply to the charges right from 07.04.2007 to 30.06.2007. It was only when the petitioner failed to submit his reply to the charges that respondent No.4 vide his letter dated 30.06.2007 appointed 12 SWP No. 1977/2009 himself as the Enquiry Officer. In these circumstances, the action of respondent No. 4 in appointing the Enquiry Officer cannot be termed as illegal. The respondent No. 4 could not have waited till eternity for petitioner to respond to the charge sheet and thereafter appoint the Enquiry Officer. Once a delinquent employee fails to file reply to the charge sheet within the stipulated time, it is open to the Disciplinary Authority to appoint the Enquiry Officer and proceed ahead with the enquiry. That is what has been done by respondent No. 4 in the instant case.
18. So far as the contention of the learned Senior Counsel for the petitioner that the Disciplinary Authority could not have appointed itself as Enquiry Officer is concerned, the same is also without any merit. It is always open to the Disciplinary Authority, who is vested with power to appoint Enquiry Officer, to either appoint itself as an Enquiry Officer or to appoint someone else as an Enquiry Officer. There is nothing illegal in the action of Disciplinary Authority to appoint itself as an Enquiry Officer. The same does not violate Rules of 1988 nor does it violate principles of natural justice. In any case the enquiry in the instant case was later on conducted by a new Enquiry Officer and not by the Disciplinary Authority. Thus, the contention of the learned Senior counsel in this regard is without any merit.
19. The other contention of the petitioner that he was not granted opportunity to participate in the enquiry proceedings and to produce his defence is also without any merit. As already discussed hereinbefore, there is enough material on record to show that the petitioner was given repeated opportunities by the Enquiry Officer to participate in the enquiry proceedings and even notice was published in the newspaper calling upon 13 SWP No. 1977/2009 the petitioner to participate in the enquiry proceedings but he failed to avail all these opportunities. The petitioner, therefore, cannot be heard to say that he was not granted opportunity to participate in the enquiry proceedings.
20. The third contention raised by the petitioner is that the notice proposing penalty of dismissal was not served upon him and as such, there has been violation of proviso to clause (2) of Rule 19 of the Rules. As per the aforesaid provision, in a case where the Committee (which as per Rule 2(c) of the Rules means the Governing Body) proposes to impose penalty including a penalty of dismissal, a show cause notice indicating the penalty proposed to be imposed has to be served upon the employee, whereafter, the same has to be considered by the Governing Body.
21. A perusal of the record shows that vide reference No.Adm/5302 dated 16.07.2009 a show cause notice has been issued by the respondent-bank through its Managing Director, calling upon the petitioner to show cause as to why he should not be dismissed from service. Along with the show cause notice, a photocopy of the enquiry report is shown to have been forwarded to the petitioner. The said letter has been sent to the petitioner through registered post and it seems that the petitioner thereafter addressed a letter dated 01.08.2009 to the respondent-bank wherein he assured the bank that he would ensure that he would collect misappropriated money from beneficiary Sh. Rajesh Gupta and deposit the same with the respondent-bank by 20.09.2009. This letter was considered by the Board of Directors of the respondent-bank in its meeting on the same day i.e on 01.08.2009 and the Board decided to grant time to the petitioner. The record also shows that on 14 SWP No. 1977/2009 26.08.2009, the Board decided to dismiss the petitioner and accordingly, the impugned order dated 28.08.2009 came to be passed.
22. From the aforesaid sequence of events, it is clear that notice proposing penalty upon the petitioner has been received by him whereafter he sought time to liquidate the misappropriated amount. Thus, it cannot be stated that the petitioner has not been served with notice proposing penalty upon him. Thus, there is no violation of Rule 19 of the Rules on this score.
23. It has been contended by the petitioner that as per proviso to clause- (2) of Rule 19 of the Rules, approval as regards the impugned order of dismissal of the petitioner from services has not been accorded by the Selection Board in the instant case and, as such, the same is non est in the eyes of law.
24. In the above context, it would be appropriate to notice the provisions contained in clause (2) of Rule 19 of the Rules which reads as under:
"(2) No penalty shall be imposed on any member of the service unless proper inquiry has been held giving reasonable opportunity to the employee to be heard and thereafter he has been properly charge sheeted and his reply thereto considered.
Provided that in case where the Committee/Authority proposes to impose any of the penalties other than those specified in clauses (1) and (ii) of sub-rule (1) a show cause, indicating the penalty proposed to be imposed, shall be served to the employee and thereafter on due consideration of the reply thereto and with the approval of the Selection Board any penalty as may be deemed proper may be imposed."
25. From a perusal of the aforesaid clause, it is clear that in case the Governing Body of a Cooperative Society proposes to impose a penalty inter alia the penalty of dismissal, a show cause notice indicating the proposed penalty to be imposed has to be served upon the employee and thereafter his reply has to be considered and ultimately the penalty has to be imposed with the approval of the Selection Board.
15SWP No. 1977/2009
26. Clause (n) of Rule 2 of the Rules defines the Selection Board as the concerned District Selection Board constituted under Rule 6. As per Rule 6, the District Selection Board comprises of the following:
"i. Deputy Registrar Co-operative Societies (Supervision) of the District- Chairman ii. District Audit Officer- Member iii. Chief Executive to the society to which the vacancy to be filled up pertains- Member iv. Representative of the Co-operative Employees Union- Member v. Assistant Registrar (Nominated by the Registrar) Member Secy."
27. A plain reading of clause (2) of Rule 19 of the Rules shows that for imposition of penalty of dismissal upon an employee, the decision of the Governing Body of the Cooperative Society has to be approved by the Selection Board constituted as per Rule 6 of the case. It is an admitted case of the parties that till date no Selection Board in terms of Rule 6 of the Rules has been constituted by the Government. This position has been conceded even by the learned counsel appearing for the State Government.
28. The question that arises for consideration is whether in the absence of the authority competent for granting approval to imposition of a penalty of the nature mentioned in proviso to clause (2) of Rule 19 of the Rules, such penalty can be imposed against an employee at all. One of the settled principles of interpretation of statutes is that there is presumption that law does not compel doing of impossibilities. Therefore, a statutory provision laying down a duty is construed as not applying to a case where performance is impossible. This principle has been enunciated by the Supreme Court in the case of Cochin State Power and Light Corporation Limited vs State of Kerala, 1965 SCC Online SC 29. In the said case, the Supreme Court while applying this principle, observed as under:
16SWP No. 1977/2009
"7. Sub-section (1) of Section 6 expressly vests in the State Electricity Board the option of purchase on the expiry of the relevant period specified in the license. But the State Government claims that under sub-section (2) of Section 6 it is now vested with the option. Now, under sub-section (2) of Section 6, the State Government would be vested with the option only "where a State Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking". It is common case that the State Electricity Board was duly constituted. But the State Government claims that the State Electricity Board did not elect to purchase the undertaking. For this purpose, the State Government relies upon the deeming provisions of sub-section (4) of Section 6, and contends that as the Board did not send to the State Government any intimation in writing of its intention to exercise the option as required by the sub-section, the Board must be deemed to have elected not to purchase the undertaking. Now, the effect of sub-section (4) read with sub-section (2) of Section 6 is that on failure of the Board to give the notice prescribed by sub-section (4), the option vested in the Board under sub-section (1) of Section 6 was liable to be divested. Sub-section (4) of Section 6 imposed upon the Board the duty of giving after the coming into force of Section 6 a notice in writing of its intention to exercise the option at least 18 months before the expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December 3, 1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2, 1960, was impossible from the very commencement of Section 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogitia ad impossibile (the law does not compel the doing of impossibilities), and sub-section (4) of Section 6 must be construed as not being applicable to a case where compliance with it is impossible. We must therefore, hold that the State Electricity Board was not required to give the notice under sub-section (4) of Section 6 in respect of its option of purchase on the expiry of 25 years. It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub-
section (4) of Section 6. By the notice served upon the appellant, the Board duly elected to purchase the undertaking on the expiry of 25 years. Consequently, the State Government never became vested with the option of purchasing the undertaking under sub-section (2) of Section 6. The State Government must, therefore, be restrained from taking further action under its notice, Ex. G, dated November 20, 1959.
17SWP No. 1977/2009
29. From the aforesaid analysis of law on the subject, it is clear that in a case where performance of a legal requirement is impossible, it has to be construed that the statute to the extent it casts an obligation to perform such an act is required to be avoided.
30. In the instant case, if a Cooperative Society is asked to obtain a prior approval of the Selection Board before imposition of a major penalty upon a delinquent employee against whom serious charges have been established, then it would be impossible for the said Cooperative Society to impose such penalty upon the delinquent employee because the Selection Board has not been constituted even after the promulgation of the Rules in the year 1988. This will give rise to an anomalous situation, whereby corrupt, undesirable and unwanted employees of a Cooperative Society would continue to serve even after having been indicted of serious charges and no action would be possible against them. Such a scenario would undermine the functioning of a Cooperative Society which in turn would be against the public policy. Therefore, in accordance with the maxim, "lex non cogitia ad impossible", the respondent-bank is not required to seek the approval of a non-existent Selection Board for dismissal of the petitioner or for that matter for imposition of major penalty on any other employee, till such time, the Selection Board is constituted. Thus, even if the respondent-bank has not fully complied with provisions contained in proviso to clause (2) of Rule 19 of the Rules, still then impugned order of dismissal of the petitioner cannot be termed as having been passed in violation of the Rules.
31. Lastly it has been contended by the learned counsel for the petitioner that no subsistence allowance was paid to the petitioner during his 18 SWP No. 1977/2009 suspension, therefore, the whole enquiry proceedings are vitiated. In this regard, it is to be noted that it is not in every case the enquiry proceedings would get vitiated if subsistence allowance is not paid to a delinquent employee. It is only in those cases where due to non-payment of subsistence allowance, an employee has been prevented from participating in the enquiry proceedings that the said proceedings would get vitiated. In the instant case, the petitioner is a resident of Jammu and the enquiry proceedings were also being conducted at Jammu. Therefore, the petitioner was not required to incur any expenses for participating in the enquiry proceedings. In these circumstances, the non-payment of subsistence allowance to the petitioner has not hampered him from attending the enquiry proceedings. Thus, merely because the petitioner has not been paid the subsistence allowance, would not vitiate the enquiry proceedings.
32. For the foregoing reason, I do not find any merit in the instant petition. The same is dismissed.
33. Record of the enquiry be returned to the learned counsel for the respondent-bank.
(SANJAY DHAR) JUDGE Jammu 07.11.2023 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No