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2011 DIGILAW 189 (GAU)

S. Yanger AO v. State of Nagaland

2011-03-07

BROJENDRA PRASAD KATAKEY

body2011
JUDGMENT and ORDER B.P. Katakey, J. 1. The petitioner, who was appointed to the post of LDA/Cashier/Cashier-Cum-Clerk in Nagaland State Co-operative Bank Ltd. (hereinafter referred to as 'respondent bank'), by the present writ petition has challenged the order dated 16.06.2004, issued by the Managing Director of the said bank intimating the decision of the Board of Directors, i.e., disciplinary authority to terminate him from service with immediate effect and also the order dated 08.09.2004 issued by the Managing Director rejecting the claim of the petitioner for back wages from the date of his earlier termination i.e. dated 19.12.1998 till the date of the present termination in question i.e. 16.06.2004. 2. Heard Mr. M. Wabang, learned counsel for the petitioner and Mr. T.B. Jamir, learned counsel for the respondent bank. 3. The learned counsel for the petitioner referring to the averments made in the writ petition as well as the record produced by the learned counsel appearing for the respondent bank has submitted that the disciplinary proceeding initiated and conducted against the petitioner by issuing show cause notice dated 24.06.2003, has been conducted in complete violation of principles of natural justice inasmuch as the witnesses examination by the management in support of the charges levelled against him have not been swallowed to be cross examined by the petitioner in the enquiry proceeding, though the petitioner under Rule 121 of the Staff Service Rule of the respondent bank has the right to cross examine such witnesses. The learned counsel, therefore submits that the decision to terminate the petitioner from service on the basis of the enquiry report submitted by the enquiry officer base on such proceedings needs to be interfered with. 4. The learned counsel referring to the judgment and order dated 28.03.2003, passed by a single bench of this Court in W. P.(C) 234(K)/2002, wherein the earlier order of his termination from service dated 19.12.1998 was put to challenge, has submitted that since by the said judgment and order the petitioner was directed to be reinstated in service giving liberty to the respondent bank to initiate the disciplinary proceeding against him and also, if necessary, to place him under suspension, the petitioner cannot be denied salary to which he is entitled to i.e. from the date of his termination to the date of the present termination in question i.e. 16.06.2004. The learned counsel for the petitioner, therefore, submits that the order dated 08.09.2004 passed by the respondent bank refusing to pay the salary for the aforesaid period also needs to be interfered with and the respondent bank may be directed to pay the salary for the said period. 5. It is also submitted that the petitioner after filing of the writ petition had also filed a representation before the Chairman of the respondent bank which has also not been disposed of till date, which, therefore, directed to be disposed of. 6. Mr. T.B. Jamir, learned counsel for the respondent bank on the other hand supporting the order of termination dated 16.06.2004 has submitted that since the petitioner has admitted the charge levelled against him vide the show cause notice dated 24.06.2003, denial of opportunity to cross-examine the witnesses examined by the respondent bank in support of the charges levelled against the petitioner would not in any way effect the order of termination of service, keeping in view the serious allegations made against the petitioner. The learned counsel further submits that since vide judgment order dated 28.03.2003, no direction for payment of the back wages was issued, the petitioner cannot claim the back wages till the present order of termination, more so when the earlier order of termination dated 19.12.1998 has been interfered with by a Single Bench of this Court on technical grounds. 7. I have considered the submissions of the learned counsel for the parties and also perused the pleadings. I have also perused the record of the disciplinary proceeding initiated against the petitioner, which has been produced by the learned counsel for the respondent bank. 8. It appears that while the petitioner was serving in the respondent bank, he was arrested and detained in custody in connection with a criminal case being G R. Case No. 296/97 registered under Sections 392/409 of the IPC. In the said criminal proceeding the investigating agency however submitted the final report which was accepted by the competent Criminal Court and the petitioner was discharged from the said case. 9. The respondent bank thereafter passed an order dated 19.12.1998 terminating the petitioner from service, which was put to challenge in W.P.(C) 234 (K) of 2002. In the said criminal proceeding the investigating agency however submitted the final report which was accepted by the competent Criminal Court and the petitioner was discharged from the said case. 9. The respondent bank thereafter passed an order dated 19.12.1998 terminating the petitioner from service, which was put to challenge in W.P.(C) 234 (K) of 2002. The said writ petition was allowed by a single bench of this Court vide order and judgment and order dated 28.03.2003 setting aside the said order of termination dated 19.12.1998, on the ground that before passing such order, no disciplinary proceeding has been initiated as required under the service rules. The relevant portion of the said judgment is quoted below:- The respondent shall reinstate the petitioner forthwith with effect from the date his service were terminated. However, on being reinstated, the respondents are at liberty to initiate disciplinary proceeding against the petitioner, and for that matter, he may also be put under suspension and complete the departmental proceedings in accordance with law. The whole process shall be completed within three months from the date a copy of this order is served on the respondents No. 3 and 4. 10. The Managing Director of the respondent bank, in view of the aforesaid judgment and order, passed an order on 18.06.2003 advising the petitioner to resume duties. By the said order the petitioner has also been informed that the disciplinary proceeding against him shall be initiated afresh and he may be suspended in accordance with the service rules as in force. By another order dated 18.06.2003, passed by the Managing Director of the respondent bank the petitioner however has been placed under suspension with immediate effect. By the said order the petitioner has also been informed that he would be entitled subsistence allowance in terms of Rules 12 (4) (iii) of the staff service rules. 11. The charge memo dated 24.06.2003 was thereafter issued by the disciplinary authority levelling two charges against the petitioner. The petitioner on receipt of the same filed his written statement in defence giving the details of the circumstances under which certain amount was taken away by certain persons. The respondent, being not satisfied with the explanation furnished by the petitioner, against the charges levelled, decided to hold the disciplinary proceeding and consequently the enquiry officer was appointed and enquiry was conducted. The respondent, being not satisfied with the explanation furnished by the petitioner, against the charges levelled, decided to hold the disciplinary proceeding and consequently the enquiry officer was appointed and enquiry was conducted. In the said enquiry, four witnesses were examined by the management in support of the charges, apart from recording the statement of the petitioner. A defence counsel was also appointed in the said proceeding. 12. The records of disciplinary proceeding reveal that the witnesses examined by the respondent bank in support of charges levelled against the petitioner have not been allowed to be cross-examined by the petitioner. The enquiry officer on completion of the enquiry submitted his report on 19.09.2003 by holding that the charges levelled against the petitioner have been proved. The enquiry officer has recorded such finding based on the statement of the witnesses examined by the respondent bank in support of the charges, apart from the statement of the petitioner. 13. The disciplinary authority on 13.03.2004 issued another notice to the petitioner asking him to show cause as to why he should not be terminated from service in view of the finding of the enquiry officer. The petitioner was also served with a copy of the enquiry report. Though the petitioner submitted his representation against the findings recorded by the enquiry officer in his report, the disciplinary authority did not accept the contention of the petitioner in the representation and inflicted the punishment of the termination from service which has been communicated to the petitioner vide order dated 16.06.2004. 14. It also appears that the petitioner thereafter filed an application before the Managing Director for release of his salary w.e.f. from the first order of termination dated 19.12.1998, which has been rejected by the Managing Director vide order dated 08.09.2004. Another representation was also filed by the petitioner for reinstatement of service before the respondent bank, which is still pending for consideration. 15. Rule 121 of the staff service rules confers a right on the charged officer to cross examine the witnesses examined by the management in support of the charges and to give evidence in person. Another representation was also filed by the petitioner for reinstatement of service before the respondent bank, which is still pending for consideration. 15. Rule 121 of the staff service rules confers a right on the charged officer to cross examine the witnesses examined by the management in support of the charges and to give evidence in person. In the instant case as noticed above, the witnesses examined by the respondent bank in support of the charges have not been allowed to be cross examined either by the petitioner or by defence counsel though the enquiry officer in his report dated 19.09.2003 recorded the finding of guilt against the petitioner on the basis of statement of such witnesses examined by the management. The petitioner in fact was kept in dark about the statements made by such witnesses. It is the bare minimum of the principle of natural justice that the delinquent officer must be allowed to cross examine the person who speaks against him, so that the delinquent officer can demonstrate that whatever has been stated by such person is not correct. The said opportunity has been denied to the petitioner. The disciplinary authority while passing the impugned order dated 16.06.2004 has ignored that aspect of the matter. The contention of the respondent bank as the petitioner has in written statement admitted the charge, non-affording of opportunity to cross examine the witnesses would not have any effect, cannot be accepted as the petitioner has in his written statement narrated certain circumstances in which the incident occurred, which was not accepted by the respondent bank, for which the disciplinary proceeding was initiated. Moreover, in the said written statement there is no admission of charges. 16. That being the position, the decision of the Board of Directors as communicated vide order dated 16.06.2004 cannot stand the scrutiny of law, hence the same is set aside. The respondent bank shall proceed with the disciplinary proceeding from the stage of cross examination of the witnesses examined in support of the charges levelled against the petitioner and finalise the said proceeding within a period of four months from today. Since the order of termination of the petitioner from service has been interfered with on the grounds of violation of principle of natural justice, the petitioner shall continue to be under suspension as he was placed under suspension vide order dated 18.06.2003. 17. Since the order of termination of the petitioner from service has been interfered with on the grounds of violation of principle of natural justice, the petitioner shall continue to be under suspension as he was placed under suspension vide order dated 18.06.2003. 17. Relating to the claim of salary with effect from the first order of termination dated 19.12.1998 till the present order of termination dated 16.06.2004, as discussed above, the petitioner was re-instated in service by the Managing Director vide order dated 18.06.2003 pursuant to the directions contained in the aforesaid judgment and order dated 28.03.2003, passed in the aforesaid W.P.(C) 243/2002. The petitioner having been reinstated in service as the earlier order of termination dated 19.12.1998 was held to be illegal, he is entitle to salary from 19.12.1998, i.e. the date of the judgment till 18.06.2003 when he was put under suspension. The salary for the period has been wrongly denied by the respondent bank vide order dated 08.09.2004. The said order 08.09.2004 is therefore set aside. The respondent bank is directed to pay the salary to the petitioner from 19.12.1998 to 17.06.2003 within a period of three months. 18. The writ petition is accordingly allowed to the extent indicated above. 19. No cost. Petition allowed