Bollikonda Ramaiah v. Nalgonda District Co-operative Central Bank Limited
2014-11-24
R.KANTHA RAO
body2014
DigiLaw.ai
ORDER : R. Kantha Rao, J. 1. This writ petition is filed seeking a writ of mandamus to declare that the proceedings, dated 13.11.2014, on the file of the first respondent bank are contrary to Regulation 66(v) of the Nalgonda Cooperative Central Bank Limited Service Regulations of the Employees (for short 'the Regulations') apart from being illegal, violative of the principles of natural justice and violative of Article 14 of the Constitution of India (for short 'the CoI'), and thereby to set aside the said proceedings, and consequently, to direct the first respondent bank to change the second respondent as the Enquiry Officer in the enquiry initiated in pursuance of the charge memo, dated 17.10.2013, issued to the petitioner. 2. An enquiry was initiated against the petitioner on the charges of misappropriation by appointing the second respondent as the Enquiry Officer. The petitioner submitted a representation to the first respondent bank to change the second respondent as Enquiry Officer on the grounds, namely, that he is junior to him and also levelling certain allegations of bias. The same was rejected by the first respondent bank by the impugned proceedings, dated 13.11.2014. Feeling aggrieved thereby, the petitioner filed the present writ petition for the aforesaid reliefs. 3. It is stated by the petitioner that the first respondent bank is an instrumentality of the State within the meaning of Article 12 of the CoI and therefore, this Court has jurisdiction to entertain a writ petition seeking relief under Article 226 of CoI. 4. It is also stated that initially on 09.01.2014, the first respondent bank appointed one Smt. K. Narmada, Deputy General Manager (DGM) (Estt.), as the Enquiry Officer to make enquiry into the charges levelled against the petitioner and some other employees of the first respondent bank. Subsequently, she became the Chief Executive Officer and therefore, the first respondent bank in her place appointed the second respondent as the Enquiry Officer, by proceedings, dated 17.10.2014. The petitioner further submits that he is senior to the second respondent in the cadre of Assistant General Manager, that, in fact, he was due to get promotion as Deputy General Manager and that the second respondent is behind the screen and to facilitate for his promotion as Deputy General Manager, he prevailed over the first respondent bank to get the suspension order issued and also initiation of disciplinary proceedings against the petitioner.
Therefore, the petitioner says that he apprehends that there is any amount of scope for biased approach on the part of the second respondent and in case, he is continued as Enquiry Officer, no justice would be done to him. He rested his claim to change the Enquiry Officer on Regulation 66(v) of the Regulations. 5. Regulation 66(v) of the Regulations reads as follows: "(v) ENQUIRY OFFICER The Bank while appointing an enquiry officer should take care that the Enquiry Officer will act judiciously and without any bias. If the delinquent employee reasonably apprehends that the particular officer is biased against him, the entire Enquiry Proceedings would be vitiated. Therefore, the officer selected to make an enquiry should be a person with open mind and not one who is biased against the employees against whom action is sought to be taken. If the charge sheeted employee makes a grievance about the appointment of an Enquiry Officer, in all fairness, it shall be looked into by the Disciplinary Authority and shall appoint an Enquiry Officer, who may not be objected to by the charge sheeted employee." 6. The second respondent filed a counter-affidavit, principally challenging the maintainability of the writ petition and also contending that there is no legal bar to appoint a junior as Enquiry Officer and further asserting that in fact he is not junior to the petitioner. It has also been contended in the counter that except the assertions made in the affidavit filed in support of the writ petition, absolutely no facts or any circumstances have been brought on record showing that the second respondent is in any way biased towards the petitioner and prejudice would be caused to the petitioner. 7. Sri T. Amarnath Goud, learned counsel appearing for the second respondent, contends that with the promotion of Smt. K. Narmada, who was initially appointed as Enquiry Officer as Chief Executive Officer, it has become difficult to get the enquiry effectively conducted and also that since the enquiry relates to a scam of Rs. 15 crores, change of Enquiry Officer will prejudicially affect the enquiry against not only the petitioner but also some other employees. 8.
15 crores, change of Enquiry Officer will prejudicially affect the enquiry against not only the petitioner but also some other employees. 8. As regards the maintainability of the writ petition, learned Single Judge of this Court in W.P. No. 10548 of 2004, by order, dated 23.07.2014, after going through several judicial pronouncements, held that the appellant society has to be treated as an entity amenable to writ jurisdiction under Article 226 of CoI, if not under Article 12 of CoI. 9. The learned counsel for the petitioner submits that the above order passed by the learned Single Judge as no appeal having been preferred against it has become final. The learned counsel further relied on the judgment of the Supreme Court in Akalakunnam Village Service Coop. Bank Ltd. vs. Binu N. (2014) 9 SCC 294, wherein the Supreme Court accepted the contention put-forth on behalf of the writ petitioners that a writ would lie against a cooperative society when the duty owned by it is of a public nature or when there is infringement of any statutory rules by a cooperative society. 10. Moreover, there is no denial to the fact that several writ petitions filed by and against the cooperative societies, wherein violation of statutory rules have been alleged, have been entertained by this Court. Therefore, I do not see any force in the contention that this Court has no jurisdiction to entertain the present writ petition under Article 226 of CoI. 11. The next question would be whether the petitioner is able to show that there is a reasonable apprehension in his mind about the bias in the enquiry, in case the second respondent is continued as Enquiry Officer. 12. In this context, it would be necessary to peruse Regulation 66(v) of the Regulations basing on which the present writ petition is filed. 13. A plain reading of the Regulation squarely shows that if the charge sheeted employee makes a grievance about the Enquiry Officer, in all fairness, it shall be looked into by the disciplinary authority and it shall appoint an Enquiry Officer, who may not be objected to by the charge sheeted employee. 14. From the Regulation, therefore, it is evident that mere existence of reasonable apprehension is enough and the petitioner is not required to prove the basis for his apprehension by adducing some evidence.
14. From the Regulation, therefore, it is evident that mere existence of reasonable apprehension is enough and the petitioner is not required to prove the basis for his apprehension by adducing some evidence. Further, in the instant case, as per the seniority list submitted by the learned counsel for the petitioner, at the time of hearing, the second respondent - Enquiry Officer is next to the petitioner. Therefore, there would be certainly any amount of apprehension in the mind of the petitioner as if he is sidelined, the second respondent would get promotion. The Regulation clearly shows that whenever an apprehension is expressed by a charge sheeted employee, the disciplinary authority shall look into the matter and see that an Enquiry Officer, who may not be objected to by the charge sheeted employee, shall be appointed. The object of the Regulation obviously seems to be to ensure free, fair and unbiased enquiry and unless the Court thinks that absolutely there is no basis for the apprehension of the charged employee, it shall give effect to the Regulation by directing the disciplinary authority to change the Enquiry Officer. 15. As regards the availability of the Enquiry Officer above the rank of the petitioner, learned counsel for the petitioner submits that there are two DGMs in the first respondent bank, who can be appointed as Enquiry Officer. 16. In view of the above, I am thoroughly satisfied that the petitioner made out a case for change of the second respondent as Enquiry Officer in terms of Regulation 66(v) of the Regulations and the relief prayed for in this writ petition can be granted to him. Accordingly, the Writ Petition succeeds and the same is allowed. Consequently, the impugned proceedings, dated 13.11.2014, issued by the first respondent bank are set aside and the proceedings, dated 17.10.2014, issued by the first respondent bank appointing the second respondent as Enquiry Officer are also set aside. The first respondent bank shall take steps to appoint new Enquiry Officer in place of the second respondent for the purpose of enquiry against the petitioner. It is needless to observe that the petitioner shall cooperate with the enquiry when the new Enquiry Officer takes up the enquiry against him. There shall be no order as to costs. The miscellaneous petitions, pending if any, shall stand closed. Petition allowed