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2009 DIGILAW 246 (MP)

Indore Premier Cooperative Bank Ltd. v. Hemchand

2009-02-17

K.C.SHARMA, P.D.MISHRA

body2009
JUDGMENT Mishra -- 1. This appeal has been filed against the order of Joint Registrar Cooperative Societies, Ujjain passed in Service Dispute No. C-43/07-08 dated 26.6.2008. 2. Brief facts giving rise to this appeal are that the appellant is a registered Cooperative Bank U/S 9 of the Act and the respondent is its employee. There were some financial irregularities noticed in the working of the respondent and he was issued a show cause notice. Since, the reply to the notice was not found satisfactory, a departmental enquiry was instituted against him. As a result of this enquiry, the respondent by the order of the appellant Bank dated 25.8.2003 was reduced in rank. He was thereby demoted from the post of Public Relation Officer to the level of Clerk. The respondent filed a Service Dispute U/S 55 (2) which was initially heard by the Joint Registrar Cooperative Societies, Indore, but on the request of the respondent, the same was transferred to the Joint Registrar Cooperative Societies Ujjain, who through the impugned order has set aside the reduction in rank's order of the appellant. Therefore this appeal. 3. Counsel appearing for the appellant Bank argued that there is no post of Public Relation Officer provided in the Service Rules of the appellant Banke His enquiry was conducted properly and on the basis of the enquiry report only he was punished by reducing his rank. The counsel has also urged that in case if the Joint Registrar had found any fault in the enquiry he could have well remanded the case. His setting aside the order of the appellant was not justified. 4. Counsel appearing for the respondent urged that the enquiry was conducted by the officer who was not senior to the respondent as required. There have been thus prejudices caused to his case. It was also submitted that because the respondent was appointed on the post of Public Relation Officer on 5.1.1996 he could not have been demoted to a post which he had never held. The counsel has placed his reliance on AIR 1987 SC 1627 , Hussain Sasansaheb Kaladgi v. State of Maharashtra, wherein it has been held that a direct recruit cannot be reverted to a lower post. Thus, the Hon'ble apex Court in the cited case had held that the order of State Government reverting direct recruit to the lower post of Primary Teacher is unsustainable. 5. Thus, the Hon'ble apex Court in the cited case had held that the order of State Government reverting direct recruit to the lower post of Primary Teacher is unsustainable. 5. Based on the above assertions of the two sides, following two points are worth consideration for the decision of this case : (i) Whether the enquiry conducted was vitiated and has any prejudice being caused to the respondent? (ii) Whether the respondent could have been reduced to a rank he had never held. Point No. (i) : 6. Initially show cause notice was issued to the respondent on 7.10.1998 for seeking his reply on the alleged financial irregularities as they were grave in nature. The respondent went on seeking time for the documents for submitting his reply. Subsequently on 8.5.2000, Shri R.B. Bhandari, Additional Manager was appointed the Enquiry Officer for conducting the enquiry. The respondent continued to seek documents submitting various representations. On 31.7.2000 he represented against the appointment of the enquiry officer. However, on the retirement of Shri Bhandari vide order dated 7.11.2000, Shri Ram Yadav, Statistical Officer was appointed as Enquiry Officer. The Enquiry Officer Shri R.S. Yadav on 18.12.2001 ultimately submitted his enquiry report which also formed the basis of the action taken by the appellant Bank against the respondent. The Joint Registrar through his impugned order has gone into the fact finding mission of this issue and has ultimately held that Shri R.S. Yadav, Statistical Officer has himself admitted that the post of the Public Relation Officer was equivalent to him and the respondent was not any way his subordinate. The Joint Registrar has that way concluded that the enquiry was in this manner vitiated. Service Rule No. 60 of M.P. Zila Sahakari Kendriya Bank Karamchari Sewa (Niyojan, Nirbhandhan & Unki Karya Stithi) Niyam, 1982 (for short 'the Rules of 1982') does provide in the proviso that the enquiry officer in a departmental enquiry should be senior to the person against whom the enquiry is conducted. This issue has been well settled in Pankajesh v. Tulsi Gamin Bank and another, (1997) 7 SCC 68 , wherein Hon'ble apex Court has held that in a departmental enquiry, the enquiry officer must be of the rank higher than the Charged Officer, but in case no substantial prejudice is caused to the Charged Officer, the same may go as an exception. The important point therefore which remains to be settled is whether any prejudice was caused to the Charged Officer? How is it to be ascertained that a prejudice has been caused to the interest of the respondent? It is difficult as a matter of fact to anticipate if a prejudice would be caused. It is therefore settled that even if the enquiry officer was not of a higher grade it would not be material if no injustice is caused to the delinquent. The respondent also at no point of time raised this question and shown his apprehension about any prejudice being caused to him. Thus, in the light of the principle laid down by Hon'ble Supreme Court, it cannot be held that the departmental proceedings were vitiated. Point No. (ii) : 7. It is obvious that the respondent was appointed on the post of Public Relation Officer. It was a case of direct recruitment. He never held any clerical post. Therefore, when the appellant Bank punished him by reducing his rank it was not open for it to reduce him to the post of a Clerk, which he had never held. In the light of above quoted judgment of Hon'ble apex Court, this punishment goes against a well settled principle of law which can certain! y not be held to be proper and worth upholding. Joint Registrar through his impugned order that way holding it to be improper has certainly not committed any error. 8. As discussed above, the order of the appellant Bank for demoting the respondent is disproportionate and improper as held by the Joint Registrar and could well not be upheld, but instead of setting aside the order, the Joint Registrar would have passed a much fairer order, by remanding back it to the appellant Bank for passing a proper and judicious order. 9. As a consequences of above analysis, the order passed by Joint Registrar Cooperative Societies, Ujjain dated 26.6.2008 is set aside. Similarly, the order passed by the appellant Bank dated 25.8.2003 by which the respondent/employee was demoted from the post of P.R.O. to the post of L.D.C. is also set aside. Though, the punishment of demotion was awarded after a regular domestic enquiry, but the punishment is improper and against the well settled principle of law as above. Similarly, the order passed by the appellant Bank dated 25.8.2003 by which the respondent/employee was demoted from the post of P.R.O. to the post of L.D.C. is also set aside. Though, the punishment of demotion was awarded after a regular domestic enquiry, but the punishment is improper and against the well settled principle of law as above. Hence, it is directed that the Bank will take proper decision in respect of punishment in the light of the report of domestic enquiry conducted. The termination order of the respondent employee has also been quashed in Second Appeal No. 82/07 decided on 17.2.2009. The status of the employee shall remain as it was at the time of demotion. The Bank is expected to take fresh decision in respect of the demotion within a period of two months. The respondent is directed to appear before the appellant Bank authorities on 24.2.2009. Parties to bear their own costs.