West Bengal State Co-Operative Bank ... vs Anita Roy And Ors. on 24 March, 2006
13. Mr. De, the learned Senior Advocate appearing on behalf of the plaintiffs-decree holders has opposed all the aforesaid contentions advanced by Mr Mitra. According to Mr. De, the dismissal order was on the face of it a nullity as will appear from the fact that his client's predecessor was not given subsistence allowance during the disciplinary proceedings when he was placed under suspension. Mr. De further points out that the first Enquiry Officer appointed by the employer who was a retired District Judge passed specific direction upon the employer to pay subsistence allowance by recording an explicit order that in the absence of such payment, the disciplinary proceedings itself would be invalid. Strangely enough, Mr De continues, the employer did not comply with the direction given by the Enquiry Officer and consequently, the disciplinary proceedings were dropped; but thereafter, the employer without complying with the earlier order of payment of subsistence allowance, appointed one of its loyal employees who was posted in the district of 24-Parganas as a new Enquiry Officer and the said Enquiry Officer without enforcing the earlier order passed by his predecessor for payment of subsistence allowance directed the indicted employee to appear in the fresh proceedings for participation. It appears from the registered letter issued by the second Enquiry Officer, Mr. De proceeded, the same was received by the deceased employee long after the date fixed for enquiry but the second Enquiry Officer was so much prejudiced that without ascertaining whether the suspended employee had received such letter, exparte concluded that the charges against employee had been proved and within two days, recommended order of dismissal which was approved by the Management. Mr. De submits that from the aforesaid fact it is clear that the order of dismissal was a nullity and once it is held to be nullity, his clients were not required to pray for declaration that such order was a nullity as held by the Supreme Court in the case of State of Madhya Pradesh v. Sayed Quamar Ali reported in 1967 SLR 228. Mr. De submits that the said decision was given by a Bench consisting of five Judges and as such, the same is still the law of the land. Mr. De submits that if there was no necessity of praying for specific declaration that the order of dismissal was wrong, in such a situation, the suit cannot be held to be barred by limitation simply because the same was filed beyond three years from the date of communication of the order of dismissal as the predecessor of the plaintiff was due to retire in normal course in the month of December, 2002.