Chattisgarh High Court
Ramesh Kumar Sahu vs State Of Chhattisgarh & Others on 28 October, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION Nos 3094 of 2006 & WP 3095 of 2006 WP 3096 of 2006 WP 3098 of 2006 WP 3100 of 2006 WP 3101 of 2006 WP 3105 of
1 Ramesh Kumar Sahu
2 Pramod Manjhi
3 Kishan Chand Yadu
4 Vishnu Dhar Diwan
5 Yogendra Thakur6 Rakesh Singh Thakur
7 Smt Anita Pandey8 Shivesh Mishra
9 Smt Namita Pandey
10 Sanjeev Diwan
11 Onkar Lal Yadav
12 Krishna Kumar Sahu
13 Vidhan Tiwari
14 Avinash Sharma
15 Nand Kishore Sharma
16 Manoj Kumar Tandan
17 Ram Narayan Yadav
18 Mohd Fakira Khan
19 Smt Komal Rao
20 Bhog Nath Patel
21 Soman Singh Som
22 Parmeshwar Kumar Verma
23 Bhoj Kumar Kurre
24 Kripa Ram Rana
25 Sunil Singh Thakur
26 Tikendra Kumar Bais
27 Mohd Akil
28 Ashok Kumar Patel
29 Ramesh Kumar Sharma
30 Pyarelal Sahu
31 Arvind Kumar Humne
32 Ram Sahay Sahu
33 Laxmi Nath Sharma
34 Naresh Bais
35 Narendra Kishore Kanungo
36 Ravi Prasad Sharma
37 Purnend Kumar Kashyap
38 Sewak Ram Hardel
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents
! Shri Mrigendra Singh Shri PR Patankar Shri Manish Nigam Shri Anand Dadariya Shri Ashish Surana Shri Prateek Sh
^ Shri MPS Bhatia Deputy Government Advocate for the State & Shri SCVerma Advocate for the District Cooperative
CORAM : Honble Shri Satish K Agnihotri J
Dated : 28/10/2010
: Judgement
J U D G M E N T
(Delivered on 28th day of October, 2010) WRIT PETITION UNDER ARTICLE 226227 OF THE CONSTITUTION OF INDIA
1. This batch of petitions viz. W.P. No. 3094, 3095, 3096, 3098, 3100, 3101, 3105, 3106, 3107, 3108, 3109, 3111, 3112, 3113, 3115, 3117, 3121, 3124, 3125, 3126, 3127, 3129, 3130, 3132, 3133, 3136, 3138, 3139, 3144, 3145, 3146, 3147, 3148, 3149, 3150, 3152, 3156 of 2006 & W.P.(S) 1321 of 2008, involves common facts and common question of law asto whether the promotion of the petitioners can be cancelled on the ground that charges of irregularities against the members and Chairman of the Staff Sub Committee of the District Cooperative Central Bank Limited, Raipur (hereinafter referred to as `the Bank'), in respect of the promotion of the petitioners, without affording opportunity of hearing to the petitioners, have been found proved.
2. The indisputable facts, in brief, as projected by the petitioners, are that the petitioners are employees of respondent-Bank. They were appointed on regular basis, as stated by learned counsel for the parties, on the post of Peon, Junior Clerk, Supervisor, Sales Man, Assistant Accountant, Branch Manager, and Society Manager. The management of the respondent-Bank appointed a Staff Sub Committee comprising of Chairman, three members and Managing Director, as Secretary of the Staff Sub Committee, for consideration of the cases of the employees for promotion to the higher post i.e. from the post of Peon to Junior Clerk, Junior Clerk to Assistant Accountant, Assistant Accountant to Branch Manager, Supervisor to Branch Manager, Salesman to Society Manager, Society Manager to Supervisor, Branch Manager to Additional Chief Accountant, Branch Manager to Additional Marketing Officer, and from Branch Manager to Deposit Mobilisation Officer. The Staff Sub Committee considered the cases of the employees numbering 177 on various dates i.e. 27.7.2004, 17.09.2004, 11.10.2004 and resolved to promote the petitioners to the higher posts. Accordingly, by order dated 20.07.2004, 17.09.2004, 01.10.2004, 11.10.2004 respectively, the petitioners were promoted to the higher posts, as aforestated on one year probation. In the meantime, the Registrar, Cooperative Societies, issued a show cause notice under section 53-B of the Chhattisgarh Cooperative Societies Act, 1960 (hereinafter referred to as `the Act, 1960'), to the Chairman of the Bank-cum-Chairman and other members of the Staff Sub Committee, including the secretary. As a sequel, the order was passed on 20.06.2005 (Annexure P/6 to W.P. No. 3094/2006) holding that the Staff Sub Committee has not followed the proper procedure of promotion as some of the appointments were fresh appointments. Thus, the selection process for appointment and promotion was vitiated. Accordingly, the Chairman and the members of the Staff Sub Committee were disqualified to hold any post under the respondent Bank for a period of three years. The details of the post originally held by the petitioner, promoted post and date of promotion are as under:
Writ Name of the Original Promoted Date of Annex Petition Petitioner Post Held Post Promotion No. by the petitioner.
3094 of Ramesh Salesman Society 17.09.200 P/2
2006 Kumar Sahu Manager 4
3095 of Pramod Junior Assistant 20.07.200 P/2
2006 Manjhi Clerk Accountant 4
3096 of Kishan Junior Assistant 01.10.200 P/2
2006 Chand Yadu Clerk Accountant 4
3098 of Vishnudhar Supervisor Branch 01.10.200 P/2
2006 Diwan Manager 4
3100 of Yogendra Junior Assistant 20.07.200 P/2
2006 Thakur Clerk Accountant 4
3101of Rakesh Assistant Branch 01.10.200 P/2
2006 Singh Accountant Manager 4
Thakur
3105 of Smt. Anita Junior Assistant 20.07.200 P/2
2006 Pandey Clerk Accountant 4
3106 of Shivesh Junior Assistant 20.07.200 P/2
2006 Mishra Clerk Accountant 4
3107 of Smt. Namita Junior Assistant 01.10.200 P/2
2006 Pandey Clerk Accountant 4
3108 of Sanjeev Junior Assistant 20.07.200 P/2
2006 Diwan Clerk Accountant 4
3109 of Onkar Lal Salesman Society 11.10.200 P/2
2006 Yadav Manager 4
3111 of Krishna Junior Assistant 11.10.200 P/2
2006 Kumar Sahu Clerk Accountant 4
3112 of Vidhan Junior Assistant 20.07.200 P/2
2006 Tiwari Clerk Accountant 4
3113 of Avinash Junior Assistant 20.07.200 P/2
2006 Sharma Clerk Accountant 4
3115 of Nand Junior Assistant 20.07.200 P/2
2006 Kishore Clerk Accountant 4
Sharma
3117 of Manoj Kumar Peon Junior Clerk 20.07.200 P/2
2006 Tandon 4
3121 of Ramnarayan Junior Assistant 20.07.200 P/2
2006 Yadav Clerk Accountant 4
3124 of Mohd. Junior Assistant 20.07.200 P/2
2006 Fakira Khan Clerk Accountant 4
3125 of Smt. Komal Junior Assistant 01.10.200 P/2
2006 Rao Clerk Accountant 4
3126 of Bhog Nath Branch Additional 20.07.200 P/2
2006 Patel Manager Chief 4
Accountant
3127 of Soman Singh Junior Assistant 20.07.200 P/2
2006 Som Clerk Accountant 4
3129 of Parmeshwar Assistant Branch 01.10.200 P/2
2006 Verma Accountant Manager 4
3130 of Bhoj Kumar Junior Assistant 01.10.200 P/2
2006 Kurre. Clerk Accountant 4
3132 of Kripa Ram Junior Assistant 20.07.200 P/2
2006 Rana Clerk Accountant 4
3133 of Sunil Singh Junior Assistant 20.07.200 P/2
2006 Thakur. Clerk Accountant 4
3136 of Tikendra Junior Assistant 01.10.200 P/2
2006 Kumar Bais. Clerk Accountant 4
3138 of Mohd. Akil. Junior Assistant 20.07.200 P/2
2006 Clerk Accountant 4
3139 of Ashok Kumar Junior Assistant 20.07.200 P/2
2006 Patel Clerk Accountant 4
3144 of Ramesh Assistant Branch 20.07.200 P/2
2006 Kumar Accountant Manager 4
Sharma
3145 of Pyare Lal society Supervisor 20.07.200 P/2
2006 Sahu Manager 4
3146 of Arvind Assistant Branch 20.07.200 P/2
2006 Kumar Humne Accountant Manager 4
3147 of Ramsahay society Supervisor 01.10.200 P/2
2006 Sahu Manager 4
3148 of Laxmi Nath Branch Additional 20.07.200 P/2
2006 Sharma Manager Marketing 4
Officer
3149 of Naresh Bais Junior Assistant 20.07.200 P/2
2006 Clerk Accountant 4
3150 of Narendra Junior Assistant 20.07.200 P/2
2006 Kishore Clerk Accountant 4
Kanungo.
3152 of Ravi Prasad Assistant Branch 20.07.200 P/2
2006 Sharma. Accountant Manager 4
3156 of Purnendra Assistant Branch 11.10.200 P/2
2006 Kumar Accountant Manager 4
Kashyap.
1321 of Sewak Ram Branch Deposit 20.07.200 P/3
2008 Hardel. Manager Mobilisation 4
Officer
3. The petitioners were issued notices for personal hearing on 03.05.2006 (Annexure P/10 to W.P. No. 3094/2006) by the Chief Executive Officer of the respondent-Bank, holding that the promotion of the petitioners have been cancelled by order dated 20.06.2005. It was further stated in the notice to appear before the Staff Sub Committee on 06.05.2006 to 09.05.2006, to put forward their cases. Thereafter, the Chief Executive Officer passed the impugned order dated 10.05.2006 (Annexure P/16 to W.P. No. 3094/2006), holding that their promotions to the higher post was irregular and as such, promotions were cancelled and the petitioners were reverted back to the original posts, wherefrom, they were promoted. Thus, this petition.
4. Shri Mrigendra Singh, Shri P.R.Patankar and Shri Prateek Sharma, learned counsel appearing for the respective petitioners, would submit that this is a case where decision has been taken, before issuing the notice, much less the show cause notice to the petitioners, to cancel the promotion and reverting them to their original post on the basis of some enquiry against the Chairman and the members of the Staff Sub Committee. No opportunity of hearing was afforded to the petitioners to put forward their cases that their promotion was not illegal or irregular. Thus, the impugned order is vitiated for non-compliance of the principles of natural justice. The petitioners have been made scapegoat on account of the change of the Chairman of the respondent-Bank which was subsequently taken over by the respondent No. 5. Thus, without following due procedure of law, the impugned action reverting the petitioners, have been taken.
5. On the other hand, Shri Bhatia, learned Deputy Government Advocate appearing for the State, would submit that admittedly, the decision to cancel the promotion order and to revert the petitioners to the original post was taken, before the notices were issued.
The pre-decision was taken on the basis of an enquiry against the Chairman and members of the Staff Sub Committee under the provisions of Section 53-B(1) of the Act, 1960.
6. On the contrary, Shri S.C. Verma, learned counsel appearing for the respondent-Bank would submit that the petitioners, without availing the alternative statutory remedy under the provisions of section 77 of the Act, 1960, have approached this Court. Thus, all the writ petitions may be dismissed as not maintainable. Secondly, since the order dated 20.06.2005 passed by the Additional Registrar, Cooperative Societies, against the Chairman and members of the Staff Sub Committee on the basis of which the impugned order has been passed, is not under challenge, the petitioners are not entitled to any relief. The petitioners were issued notice on 03.05.2006 and all the petitioners have appeared before the Staff Sub Committee of the respondent-Bank from 06.05.2009 to 09.05.2006 and submitted their oral submission and written reply. Thus, the impugned orders are just, proper and in accordance with law.
7. The respondent-Mohd. Akbar, Chairman of the respondent-Bank, did not appear, however, adopted the return filed by the respondent-Bank as well as the respondent-Staff Sub Committee, in his return dated 17.08.2006.
8. Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto, it is evident that the petitioners were initially appointed on regular basis as stated by learned counsel appearing for the parties.
9. There is no dispute that the impugned order dated 10.05.2006 was passed on the basis of the order dated 20.06.2005, wherein the allegation of irregularities committed by the Chairman and members of the Staff Sub Committee, have been found proved. It is further not in dispute that the petitioners have no role in the enquiry conducted against the Staff Sub Committee. The petitioners did not appear in the capacity of witnesses or otherwise, and had no opportunity to put forward their cases and produce documents. On perusal of the promotion order, it appears that the promotion order was passed in accordance with law. Thus, this Court is of the considered opinion that even in that event, the petitioners who were duly considered and selected by the Staff Sub Committee for promotion, have acquired a right of hearing before the impugned orders visiting with civil (evil) consequences, were passed.
10. The notice dated 03.05.2006 issued to the petitioners, in no way can be held as a show cause notice as held by this court in Durgesh Prasad Sinha v. State of Chhattisgarh & Others1.
11. The respondent authorities have pre-determined to cancel the promotion of petitioners and revert them to the original post, thus, issuing notice subsequently and reply thereof, is of no consequence. The notice dated 03.05.2006, reads as under:
"fo"k; & O;fDrxr lquokbZ ckcrA iath;d] lgdkjh laLFkk,a] NRrhlx<+ jk;iqj ds vkns'k Oekad@lk[k&1@05@3010 jk;iqj] fnukad 20&06&2005] ftldh izfrfyfi layXu gS] ds vuqlkj cSad esa vkidh ^^dfu"B fyfid** in ij inksfUufr dks fu;eksa ds fo:) Bgjkrs gq, mls fujLr fd, tkus gsrq cSad dks vknsf'kr fd;k x;k gSA mDr laca/k esa cSad ds lapkyd e.My dh cSBd fnukad 02&05&2006 esa iath;d egksn; ds vkns'kkuqlkj dkjZokgh fd, tkus dk fu.kZ; ysdj cSad dh LVkQ lc desVh dks vf/kd`r fd;k x;k gSA cSad dh LVkQ mi lfefr dh cSBd fnukad 02&05&2006 esa bl laca/k esa vkidh O;fDrxr lquokbZ fd, tkus dk fu.kZ; fy;k x;k gSA vr% ,rn~ vkidks lwfpr fd;k tkrk gS fd vki fnukad 08&05&2006 dks nksigj 12 cts LVkQ mi lfefr ds le{k viuk i{k fyf[kr vkSj@vFkok ekSf[kd :i ls izLrqr dj ldrs gSaA vkids vuqifLFkr jgus ij ;k viuk i{k izLrqr ugha djus ij vkids izdj.k ij fu;ekuqlkj vkxs dh dkjZokgh dh tkosxhA"
(Emphasis supplied)
12. Without going into the merits of the case, I propose to deal with the basic requirement of principles of natural justice in a case where the decision had already been taken and the notice has been issued thereafter.
13. In Shri B.D.Gupta v. State of Haryana2, the Supreme Court has considered the issue of the nature of show cause notice, as under:
"9.It is to our mind essential for a "show cause notice" to indicate the precise scope of the notice and also to indicate the points on which the officer concerned is expected to give a reply."
14. In K.I.Shephard & Others v. Union of India & Others3, the Supreme Court held as under:
"12..On the basis of these authorities it must be held that even when a State agency acts administratively, rules of natural justice would apply. As stated, natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representations on their own behalf; (b) or to appear at a hearing or enquiry (if one is held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet.
15. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment.
16..For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose."
15. The ratio laid down in the aforesaid case was referred with approval in V.C.Banaras Hindu University & Others v. Shrikant4, wherein it was held as under:
"33. It is furthermore evident that the Vice-Chancellor in his notice clearly demonstrated that he had made up his mind. He apparently had arrived at a conclusion that the respondent had committed misconduct and thus, it has to be informed that his notice was issued by way of mere formality."
16. The Supreme Court, in Rajesh Kumar & Others v. Dy. CIT & Others5, observed as under:
"26. Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v. Dr. Binapani Dei. It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf, compliance with principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution."
17. The law laid down in K.I.Shephard3, has been consistently referred with approval in subsequent decisions. (See: Siemens Ltd. v. State of Maharashtra & Others6, Dev Dutt v. Union of India & Others7, Pepsico India Holding Private Limited v. State of Kerala & Others8, V.Ashokan v. Assistant Excise Commissioner & Others9 ).
18. Applying the well settled principles of law as aforestated, to the instant cases, enquiry was initiated against the then Chairman, Shri Radhe Shyam Sharma, after appointment of new Chairman i.e. the respondent No. 5-Mohd. Akbar, alleged irregularities having been committed by Shri Radhe Shyam Sharma, the then Chairman, have been found proved. The petitioners were not afforded an opportunity of hearing to put forward their cases asto how their appointment was not in accordance with law, as the employees of the District Central Cooperative Bank are governed by the provisions of Jila Sahkari Kendriya Bank Karmachari Sewa Niyam, 1982. As held in the preceding paras, the notice dated 03.05.2006 was a mere formality, as the decision had already been taken to cancel the promotion of the petitioners and to revert them to their original posts, wherefrom they were promoted. Thus, the impugned order dated 10.05.2006 (in all the writ petitions), is not sustainable in the eyes of law, being vitiated for non-compliance of the principles of natural justice.
19. In Ashok Kumar Sonkar v. Union of India & Others10, the Supreme Court observed as under:
"34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized.
The court may not take serious note of an irregularity within the meeting of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be nullity."
20. In the instant cases, it is not clear asto whether there was any irregularity or illegality as in the order also, it has been found that there was irregularity, which can be regularized.
21. In some of the writ petitions, the order dated 20.06.2005, passed by the Additional Registrar, Cooperative Societies, Raipur, has been challenged. I am of the considered opinion that the same cannot be considered and adjudicated on the validity of the same for want of challenge on behalf of the, then, Chairman and members of the Staff Sub Committee. The said order is mainly against the, then, Chairman and members of the Staff Sub Committee.
22. For the reasons and analysis mentioned hereinabove, the impugned order dated 10.05.2006 (in all the writ petitions) are quashed. Consequently, all the writ petitions are allowed to the extent, indicated above.
23. However, on the request of learned counsel appearing for the respondent-Bank, it is open to the respondent-Bank to take appropriate action, in accordance with law, if so advised.
24. No order asto costs.
JUDGE