Patna High Court
Md. Mustafa Abbasi vs Chairman, State Bank Of India And Ors. on 28 July, 2000
Equivalent citations: (2001)IILLJ650PAT
JUDGMENT Radha Mohan Prasad, J.
1. In this writ petition, the petitioner has sought for issuance of a direction, order or writ in the nature of mandamus/certiorari setting aside the order contained in Annexures 2 and 7/2 reverting and finally dismissing the petitioner from service itself and further for a direction to the respondents to reinstate him in a post of J.M.G.I. and pay salary due with all benefits.
2. In short the relevant facts are that the petitioner was initially appointed as a Clerk cum Typist in the State Bank of India on July 6, 1966. He was promoted to the post of Officer Grade II with effect from April 2, 1979 and after completion of six months on probation he was confirmed on the said post on November 9, 1979. The said post was redesignated as Junior management Grade I. It is stated that while the petitioner was working as Branch Manager, Narkatia he was asked to explain certain irregularities by a letter dated December 20, 1982. The petitioner submitted his explanation but the respondents issued a charge sheet to him in June, 1983. It appears that pursuant to the said charge sheet an enquiry was held and an enquiry report was submitted against the petitioner and on the basis of said enquiry report the General Manager, State Bank of India, Local Head Office, Patna (respondent No. 4) vide order dated January 14, 1986 (Annexure 2) passed the order of his reversion to the rank of Clerk after holding him guilty under Rule 49(e) of the State Bank of India (Supervising Staff) Service Rules.
3. The petitioner challenged the validity of the said order of reversion in this Court in C.W.J.C. No. 3906/1986 which was dismissed by the order dated August 19, 1986. The petitioner filed Special Leave Petition (Civil) No. 14492/1986 in the Supreme Court. The Special Leave was granted and it was finally numbered as Civil Appeal No. 219/1987. During the pendency of the appeal, the petitioner moved Civil Miscellaneous Petition. No. 17201/1987 for payment of salary and to allow him to work in the same Branch where he was working. The Apex Court vide order dated October 5, 1987 (Annexure 3) recorded the statement of the learned counsel for the Bank that "whatever salary and allowance that may be due to the petitioner will be paid to him with effect from the date of revision." In the meanwhile he was transferred to Siwan Branch by the order dated October 28, 1988 and again on September 20, 1991 he was transferred from Siwan to Bagaha Branch in capacity as Clerk. The petitioner claims that since he was working at Siwan in the capacity of Officer, the order transferring him to Bagaha amounts to his demotion. Against the said transfer order, the petitioner again filed C.W.J.C. No. 9143/1991 which was permitted to be withdrawn vide order dated April 24, 1992. It is stated that the said permission was accorded for filing suit with respect to the grievance raised in the writ petition and accordingly, he filed Title Suit No. 210/93, against both the orders dated September 20, 1991 and January 14, 1986. The said suit was transferred to the Court of 2nd Munsif, Siwan and renumbered as TS. No. 236/1995 in which it is claimed that in the rejoinder the respondent authorities annexed the order of dismissal dated October 26, 1995 contained in Annexure 7/2. Meanwhile he kept on pursuing his claim for allowing him to join on the post of Officer and the said matter came to this Court in C.R. No. 543/1996 against the order dated May 7, 1994 by which his prayer for interim injunction directing the defendants to pay salary to the plaintiff was rejected with the observation that he may resume his duty at the post assigned to him and in that event it is incumbent upon the defendants to pay his salary from the date of joining of his duty, as per scale and allowances admissible for the post upon which he has been reverted. The petitioner in the revision application stated that thereafter he joined at the post where he was posted after reversion and he is working here but the Bank authorities are not paying any salary to him. The Court vide order dated September 19, 1996 (Annexure 8) while declining to interfere with the order dated May 7, 1994 of the Court below, however, observed that if under the aforesaid circumstances the salary is not being paid then it amounts to violation of the order passed by the trial Court and the petitioner was given liberty to make an application before the trial Court pointing out disobedience of the order by the defendants which would be disposed of within a reasonable time, if necessary, with positive direction about the payment of salary to him. Finally the said suit was dismissed for default on June 14, 1996 and the petitioner filed restoration petition. The said restoration petition was, however, barred by limitation and from the order dated December 24, 1997 (Annexure 9), it appears that a petition for condonation of delay filed on behalf of the petitioner was rejected by the learned Munsif, Siwan and Consequently the restoration application was also dismissed by the said order. Thereafter, the present writ petition was filed on January 8, 1999 for the aforementioned reliefs.
4. It is contended that during the pendency of the suit the respondent authorities taking advantage of the mental state of the petitioner passed the dismissal order behind his back and without any charge/proceeding whatsoever. According to the petitioner, the said action of the respondents is mala fide, arbitrary, a colourable exercise of power, illegal and unjust and based on irrelevant consideration and is violative of Articles 14 and 21 of the Constitution.
5. In the counter affidavit filed on behalf of the respondents it is stated that the said Civil Appeal No. 219/1987 was also dismissed on August 10, 1990. With respect to the impugned order dated October 6, 1995 (Annexure 7/2) it is stated and submitted that the said order was also passed against the petitioner by way of disciplinary action for committing serious misconduct in discharging of his duty as a clerical employee on the basis of disciplinary proceeding initiated against him and against the said order of dismissal no appeal was filed by the petitioner and as such, the same became final. It is stated that while the petitioner was working at Bagaha Branch a disciplinary proceeding was initiated against him vide charge sheet dated April 6, 1993 asking him to submit the written statement in his defence. The petitioner did not reply to the said charge sheet and as such, the regular enquiry was started. It is further alleged that in the enquiry the petitioner did not appear despite notice on several dates. However, he appeared on September 12, 1994 and submitted before the Enquiry Officer that he will defend his case himself but again did not appear on any subsequent dates. As such, the enquiry was completed ex parte. The Enquiry Officer on considering materials brought on the record found the charge proved against him and submitted his report to the disciplinary authority. On consideration of the said report and the materials on record, the disciplinary authority sent a second show cause notice vide Memo No. DPS/15/171 dated September 9, 1995 proposing the punishment and called upon the petitioner to submit reply, if any, within a period of 15 days. The petitioner did not submit, his reply and as such, the disciplinary authority passed the final order imposing the punishment of dismissal from the Bank and communicated the same vide letter No. DPS/15/186 dated October 26, 1995,
6. It is contended that the petitioner is not justified in assailing the impugned order after such a long time and that also without exhausting internal remedy of appeal under the Bank Award, i,e. Shastri Award as retained by Desai Award read with the relevant settlements under the provisions of the Industrial Disputes Act On merit it is stated that while the petitioner was posted at Narkatia Branch he I committed certain serious irregularities which were discovered later on and departmental proceeding was initiated. It is further stated that in the said proceeding all opportunities were given to the petitioner to peruse the documents, papers, defend the case, examine and cross-examine the witnesses before the Enquiry Officer. It is stated that inspite of several letters sent to the petitioner by the Bank to report on duty, he had not joined the duty and remained absent. According to the respondents, his all kinds of leave was over drawn vide letter dated September 27, 1994 written by the Bank to the petitioner, still he continuously absented from his duty from April, 1993 to March, 1995 and hence, no payment was made to him by the Bank. He reported on duty in April, 1995 but he remained irregular. He worked 28 days in April 1995, 24 days in May 1995 and June 1995, 17 days in July, 1995 and 12 days in August 1995. The Bank paid all kinds of payment as salary and allowances for the said period and nothing is due as salary and allowance of the petitioner with the Bank.
7. It appears that a supplementary counter affidavit has also been filed on behalf of the respondent Bank the affidavited copy of which is, however, not on record. Only the second copy of it is on record. In the said supplementary counter affidavit it has been reiterated that the petitioner never appeared in the enquiry despite notice except on September 12, 1994. It is alleged that the petitioner on the said date although informed the Enquiry Officer that he would take his defence by a defence counsel to be appointed later on but abruptly left the enquiry stating that the enquiry cannot proceed till he does not get any response from the Bank on the reply said to have been filed by him against the chargesheet. As such, the enquiry was further adjourned on several dates. Despite the notice of the dates were given to him by registered letters, but he did not appear and as such, the enquiry was conducted ex parte. Photo copies of the charge sheet, the notice about the date fixed in the enquiry and the report and the final order have been annexed as Annexures 'A', 'B', 'C' and 'D' respectively. It has been reiterated that the final order imposing penalty was passed after giving full opportunity to the petitioner to defend his case and on the basis of documents and the deposition of the witnesses to the enquiry.
8. A rejoinder has been filed on behalf of the petitioner to the said counter affidavit in which he has denied of receipt of any charge-sheet with respect to the disciplinary proceeding pursuant to which the order of dismissal was passed and also stated that he did not receive any notice of enquiry. According to him, the entire enquiry from the beginning to the end was ex parte. He has categorically denied that he at any stage appeared before the enquiry authority. According to him, he had no knowledge of the enquiry and the disciplinary proceeding until February 6, 1996 when the respondent disclosed in the rejoinder filed in T.S. No. 236/1995. He has further denied about any notice even after submission of the enquiry report. It is stated that Annexure 'D' contains the dismissal order of the disciplinary authority and 'D/1' is the xerox copy of the certificate issued by the Post Office with respect to the certificate of posting of Annexure 'D'. It amply shows that Annexure 'D' was purposely not sent by registered post. It is asserted that the petitioner never received Annexure 'D'. He has also denied the allegation made in Annexure 'D' that the Chief Manager of the respondent Bank had asked the petitioner in presence of C.B. Pathak, Deputy Manager and Ram Bhajan Ram, Accounts Manager on September 2, 1995 to show cause regarding the nature of his punishment and that he refused to accept the same. According to the petitioner, all these are after thought and fabricated documents and the same have been denied.
9. Having realised the facts with respect to challenge of the order of reversion (Annexure 2), learned counsel for the petitioner did not press the said relief and confined the present writ petition only with respect to the challenge of the validity of the order of punishment of dismissal from service. It has been contended that the respondent Bank has not brought any material on record to show that the petitioner was ever served with any notice in the disciplinary proceeding relating to the impugned order of dismissal except what is recorded in the notes of the Enquiry Officer which is claimed to have been recorded in presence of two other Officers of the Bank. It is submitted that the respondent Bank has admitted in the impugned order itself that the order dated September 9, 1995 with respect to the alleged grant of another opportunity before passing the impugned order was dispatched to the petitioner on the last recorded address by registered post vide postal receipt No. 344 dated September 12, 1995, which was received back undelivered with the remarks (sic). In the counter affidavit, they have only produced the photo copy of certificates of dispatch of letter to the petitioner on May 12, 1995 under postal certificate with respect to the so called date fixed in the enquiry which itself shows their mala fide with a definite intention that the petitioner might not receive it. Thus, according to the learned counsel for the petitioner, the entire proceeding with respect to the order of dismissal was conducted without affording any opportunity much less reasonable opportunity in complete violation of basic Rule of natural justice. It is thus submitted that the impugned order is vitiated on this ground alone.
10. With respect to the objection of the respondent Bank for delay in moving this Court, learned counsel for the petitioner submitted that the petitioner could only know about the impugned order of dismissal on February 6, 1996 when the respondent disclosed about it in the rejoinder filed in TS. No. 236/1995. It is submitted that the petitioner was pursuing his claim about his salary till the suit was dismissed in default finally on December 24, 1997 when the restoration was also rejected/whereafter the petitioner filed the present writ petition on January 8, 1999. It is thus submitted that having regard to the peculiar facts and circumstances of the case the principle of delay and laches will not come in the way of the petitioner from pursuing the present writ petition specially as the entire proceeding pursuant to which the impugned order has been passed is vitiated by non-compliance of the principles of natural justice, besides, the regulations of the Bank relating to departmental enquiry.
11. On May 8, 2000 a Bench of this Court directed the counsel for the Bank to make available to the counsel for the petitioner the minutes of enquiry proceedings for perusal of the counsel and, if possible, a xerox copy of the same to the counsel for the petitioner. The Court further directed the counsel for the Bank to produce the original records of the proceedings pursuant to which, Mr. Sinha, learned senior counsel appearing for the Bank, has produced the register in which the details about the conduct of the proceeding is, recorded. Learned counsel for the Bank has failed to show from the said register that there is any evidence on record even about presence of the petitioner during enquiry except what has been recorded by the Enquiry Officer himself on September 12, 1994 where he claims to have informed the petitioner who was present that he was appointed by the disciplinary authority to conduct enquiry and also asked him about as to who will defend his case on which it is alleged that the petitioner said that he would defend his case but he contended that as he had not received a reply in response to charge sheet, the enquiry cannot proceed and left the enquiry on the plea of bringing his briefcase. It is further alleged that after half an hour he came back on which he said that he would be defended by the defence counsel who would be appointed later on, but still he continued to dispute the veracity of enquiry as his letter had not been complied with. It is further mentioned that by saying this he abruptly left the enquiry and did not come back and the enquiry was adjourned. Learned counsel for the Bank has submitted that the entire register would show that the petitioner was given adequate opportunity but he did not choose to participate in the enquiry and as such proceeding was conducted exparte by examination of witnesses etc. It has been submitted that the conduct of the petitioner right from the very beginning has been such which does not warrant any interference with the impugned order of dismissal.
12. It is also submitted that the order of punishment has been passed in terms of Clause 521(5)(a) of the Shastri Award as the petitioner was found guilty of gross misconduct in the enquiry and thus, was dismissed without waiting for the service of the second show cause notice. This Court does not find any merit in the submissions of the learned counsel for the respondent Bank. The respondents have failed to produce any enquiry evidence to show that even the charge sheet was ever served upon the petitioner or that the petitioner had due notice about the conduct of the enquiry except the certificate with respect to dispatch of a letter about the date fixed in the enquiry under certificate of posting. This Court finds it difficult to accept the said evidence to hold that the petitioner had notice about the enquiry. It is also difficult to accept that whatever is recorded in the aforementioned register on September 12, 1994 was correct. The Bank has not even produced any reply allegedly sent by this petitioner to the charge sheet which is mentioned in the proceeding recorded on September 12, 1994 in the register. Thus, this Court does not find any material to show that the petitioner was given even notice about the conduct of the enquiry. It has rightly been submitted by the learned counsel for the petitioner that even assuming that the petitioner remained absent and that the Bank did not know anything about his whereabouts still it is well known Rule that under such circumstance, the notice is given through publication in the newspaper and/or any other mode prescribed for it but on such ground a person cannot be denied of the reasonable opportunity of defending himself especially as against such a severe punishment of dismissal from service.
13. Learned counsel for the Bank has also submitted that the writ petition is fit to be dismissed on the sole ground that it suffers from gross delay and laches. This Court in the facts and circumstances as aforementioned finds it difficult to accept the said objection of the learned counsel for the Bank. There may be some lapses on the part of the petitioner also, but the said lapses, in the facts and circumstances of the present case, cannot defeat his grievance as against the severe, order of punishment, i.e. dismissal from service without notice. The suit was dismissed finally on December 24, 1997 and the writ petition has been filed on January 8, 1999, i.e. hardly after a year, which in the facts and circumstances of the present case cannot be held to suffer from inordinate delay.
14. In the result, the writ application is allowed, the impugned order of dismissal contained in Annexure 7/2 is quashed and the matter is remitted back to the disciplinary authority for appointment of an Enquiry Officer, if the earlier Enquiry Officer is not in a position to conduct enquiry with the direction that the enquiry shall be held and a fresh order shall be passed in accordance with law. A copy of the charge sheet has already been brought on record as Annexure 'A'. The petitioner is, thus, directed to file his show cause within four weeks from the date of receipt/production of a copy of this judgment/order and thereafter the enquiry shall be held and completed within three months in accordance with law.
15. It is made clear that the question of payment of any salary etc. on account of quashing of the impugned order shall abide by the final result in the said enquiry.