Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 187 (CAL)

Biplab Das v. Bangiya Gramin Vikash Bank

2017-02-17

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This Mandamus Appeal is directed against the judgment and/or order passed by learned single judge of this court on 31st March, 2015 in W.P. No. 7537(W) of 2015 at the instance of the writ petitioner. An order of punishment by way of dismissal of the petitioner from service passed by Chairman of the Bangiya Gramin Vikash Bank on December, 11, 2012 was challenged by the writ petitioner in the said writ petition. 2. Though there is a long chequered history behind this litigation but for the time being suffice is to mention that the said writ petition was filed challenging the order of punishment imposed upon the petitioner by virtue of the leave granted by the appeal Court while disposing of the appeal being AST No. 354 of 2012. 3. The writ petition was ultimately dismissed with costs and the order of punishment dated 11th December, 2012 was approved by the Writ Court. The instant Mandamus Appeal is directed against the said judgment and order passed by the learned Single Judge of this court. The reason which prompted, the learned Single Judge to dismiss the said appeal are set out hereunder:- "In the present case, the disciplinary authority narrated the charges, which spoke for themselves, and the disciplinary authority indicated his concurrence with the findings rendered by the inquiry officer. The petitioner had, willy-nilly, not questioned either the substance of the inquiry report or the substance of the charges levelled against him. To the extent the petitioner questioned the conduct of the inquiry officer, the same has been addressed by the disciplinary authority in paragraph 2(a) of the order of punishment of December 11, 2012. When a superior authority agrees with a view taken by an inferior authority or a subsequent order is based on a previous reasoned order, elaborate reasons need not be indicated afresh since the reasons ought to be contained in the decision of the inferior authority or the previous order. What is necessary is the application of the mind to the matters in issue. In the present case, the disciplinary authority dealt with the scurrilous allegations made by the petitioner against the inquiry officer without the petitioner deigning to participate in the inquiry proceedings. The disciplinary authority, thereafter, referred to the charges which were eloquent and self-explanatory and concurred with the findings of the inquiry officer thereon. In the present case, the disciplinary authority dealt with the scurrilous allegations made by the petitioner against the inquiry officer without the petitioner deigning to participate in the inquiry proceedings. The disciplinary authority, thereafter, referred to the charges which were eloquent and self-explanatory and concurred with the findings of the inquiry officer thereon. Given the circumstances in this case and the failure of the petitioner to indicate any substantial defence to the findings of the inquiry officer or the tentative view taken by the disciplinary authority, no more was necessary. As a footnote, it may be noticed that the charges against the petitioner pertained to the declaration of funds from the accounts of the bank's constituents on repeated occasions." 4. Let us now consider the merit of the instant appeal in the facts of the present case. 5. Here is the case where we find that the disciplinary proceeding was initiated by the Chairman, BGVB against the petitioner. The initiation of such disciplinary proceeding by the Chairman, BGVB was challenged by the writ petitioner on the ground that the Chairman, BGVB being the appellate authority under the rules, lacks inherent jurisdiction to initiate the disciplinary proceeding against the petitioner who was an employee of the said Bank. According to the petitioner the disciplinary authority of the petitioner being an employee of the bank is the General Manager. It is contended by the petitioner that as per the rules it is only the General Manager of the Bank who can initiate a disciplinary proceeding against the petitioner. It is also contended by the petitioner that any order passed by the competent authority, namely, the General Manager is appealable to the Chairman of the Bank. 6. Since the disciplinary proceedings has been initiated in the instant case by the Chairman of the Bank being the Appellate Authority, the writ petitioner has challenged the competence of the chairman of the said bank to initiate such disciplinary proceeding against the petitioner for inherent lack of jurisdiction. 7. Mr. 6. Since the disciplinary proceedings has been initiated in the instant case by the Chairman of the Bank being the Appellate Authority, the writ petitioner has challenged the competence of the chairman of the said bank to initiate such disciplinary proceeding against the petitioner for inherent lack of jurisdiction. 7. Mr. Saha Roy, learned Advocate appearing for the writ petitioner/appellant submits that though this point was taken as a ground of attack of the competence of the Chairman of the said Bank to initiate such disciplinary proceeding against the petitioner and same was also argued before the learned Single Judge of this Court, this part of the challenge raised in the writ petition was not considered by the learned single Judge of this court while passing the impugned order. Mr. Saha Roy also pointed out from the impugned judgment that the learned Single Judge while disposing of the said writ petition concentrated on certain points which according to the learned Single Judge was the primary point of challenge in the writ petition without considering the justifiability of the other ground at all raised by the petitioner in the writ petition. 8. Mr. Majumdar, learned Advocate appearing for the bank submits in his usual fairness that he did not appear before the learned Single Judge while the writ petition was heard. As such he is not in a position to apprise this Court as to whether this point was really urged by the writ petitioner before the learned single Judge of this Court. He, however, submits that at least the impugned order does not reflect that this point was urged before the learned Single Judge of this Court and the learned Single Judge of this Court did not answer the said ground of challenge, while disposing of the writ petition. 9. Be that as it may, the jurisdictional issue is a vital issue which, in our view, can also be raised even for the first time before the appellate forum, Provided no further adjudication of disputed facts is necessary to resolve the issue regarding jurisdiction of the authority to initiate such disciplinary proceeding. Jurisdictional infirmities may be of various kinds. 9. Be that as it may, the jurisdictional issue is a vital issue which, in our view, can also be raised even for the first time before the appellate forum, Provided no further adjudication of disputed facts is necessary to resolve the issue regarding jurisdiction of the authority to initiate such disciplinary proceeding. Jurisdictional infirmities may be of various kinds. Some of such jurisdictional infirmities of the authority concerned can be waived by the parties by submitting him to the jurisdiction of the authority concerned without raising any dispute as to the competence of the authority to decide the issue raised before it. However, where the authority concerned which is trying the issue lacks jurisdiction inherently, such jurisdictional issue cannot be said to have been waived by the parties by mere submission to the authority as any order which is passed by such an authority lacking jurisdiction inherently is a nullity i.e., void ab initio in the eye of law. Keeping this principle in mind, let us now consider as to how far the disciplinary proceeding which was initiated by the Chairman of the said bank can be held to be legal and valid. 10. The condition of service of the writ petitioner is regulated by the Bangiya Gramin Vikash Bank (Officers and Employees) Service Regulation 2010 (hereinafter referred to as the said regulation). Regulation 2(1)(g) of the said regulation defines "Competent Authority" which says that "Competent Authority" means the Chairman in respect of the officer and the General Manager, in respect of the employee provided that if there is no General Manager, the Chairman shall be competent authority in respect of the employee. 11. Admittedly, the petitioner is not an officer of the bank. He was a clerk-cum-cashier, thus, he was an employee of the bank. If the definition of competent authority as defined in Section 2(1)(g) is considered in its strict sense then we have no hesitation to hold that the General Manager is the competent authority to initiate a disciplinary proceeding against the writ petitioner being an employee of the bank. It is not the case of the bank that there was no General Manager in the said Bank at the relevant time and as such the chairman initiated such a proceeding against the petitioner by virtue of his power as provided in the proviso added to Regulation 2(1)(g). 12. It is not the case of the bank that there was no General Manager in the said Bank at the relevant time and as such the chairman initiated such a proceeding against the petitioner by virtue of his power as provided in the proviso added to Regulation 2(1)(g). 12. That apart the said Regulation also provides right of appeal to the officer or the employee who is aggrieved by the order of the disciplinary authority. Regulation 49 deals with right to appeal which says that an officer or employee may prefer an appeal against any order passed under this regulation to the appellate authority mentioned in Regulation 50 within the period 45 days from the date of receipt of such order. Regulation 50 runs As follows:- "Regulation 50. Appellate Authority.- an appeal shall lie before,- (i) the Board, where the Chairman is the Competent Authority; and (ii) the Chairman, where any other officer is the Competent Authority. 13. Thus, if the provision relating to the appeal and the appellate authority as prescribed under the said regulation are considered then we find that the Appellate Authority, so far as, the employees are concerned is the Chairman. Considering the provisions relating to the definition Clause of Competent authority and the provision relating to the appeal as provided in the said regulation, we have no hesitation to hold that the authority which is prescribed under the said Regulation to initiate such a departmental proceedings against the petitioner has not initiated such disciplinary proceeding against the petitioner. On the contrary, we find that such disciplinary proceeding was initiated by the Appellate Authority. 14. The law is very clear on this subject that if there is a rule having statutory force, such rule should be adhered to by the statutory authority strictly. These statutory Regulations have not been followed by the concerned authority while initiating the disciplinary proceedings against the petitioner. 15. Mr. 14. The law is very clear on this subject that if there is a rule having statutory force, such rule should be adhered to by the statutory authority strictly. These statutory Regulations have not been followed by the concerned authority while initiating the disciplinary proceedings against the petitioner. 15. Mr. Majumdar, learned Advocate appearing for the bank tried to impress upon us that even if it is true that the authority as prescribed under the regulation has not initiated such disciplinary proceeding against the petitioner but still then there was no loss of forum of appeal so far as the petitioner is concerned as in case he felt aggrieved against any order passed by the Chairman who acted as a competent authority in the instant case, the petitioner could have challenged the decision of the said Chairman of the bank before the board in view of the provision contained in Regulation 49 read with the provision contained in Regulation 50(1) of the said Regulation. He thus, submits that when there is no loss of forum of appeal, the petitioner cannot challenge the legality of initiation of such disciplinary proceedings even if the authority which has no jurisdiction to initiate such proceeding under the rules has not initiated such proceeding. 16. In support of such contention Mr. Majumder has relied upon a decision of the Hon'ble Supreme Court in the case of Surjit Ghosh v. United Commercial Bank reported in 1995(2) SCC, 474 wherein it was held as follows:- "However when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality." 17. Of course, we agree with Mr. Majumder, learned advocate that there will be no loss of forum of appeal as an appeal is provided under the regulation against the order of the Chairman of the Bank to the Board but at the same time, we cannot be oblivious of the regulations which prescribe a particular authority as the competent authority which can initiate a disciplinary proceeding against an employee of the Bank. The said Rule also contains a proviso which says under what circumstances the higher authority can exercise the power of the competent authority. When the regulation is clear and unambiguous as to the authority which can initiate the proceeding against an employee, this Court does not find any justifiable reason which prompted the appellate authority to initiate such a proceeding by assuming the jurisdiction of the competent authority. Discretion to choose competent authority for initiation of a disciplinary proceeding contrary to the Rules cannot be left to the employer. If exercise of such discrimination by the employer is encouraged, certainly there will be a chance of discrimination between an employee and an employee which surely, cannot be held as savour of legality. 18. The Hon'ble Supreme Court in the case of P.V. Srinivasa Sastry & Ors.- vs-Comptroller and Auditor General reported in 1993(1) SCC, 419 has held that is only in the absence of a rule, the superior authority who can be held to be a controlling authority, can initiate a disciplinary proceeding. 19. 18. The Hon'ble Supreme Court in the case of P.V. Srinivasa Sastry & Ors.- vs-Comptroller and Auditor General reported in 1993(1) SCC, 419 has held that is only in the absence of a rule, the superior authority who can be held to be a controlling authority, can initiate a disciplinary proceeding. 19. Thus, in view of the discussion made hereinabove, we are of the view that the very initiation of a disciplinary proceeding against the writ petitioner by the Chairman of the said Bank is illegal as the Chairman of the said Bank is not a competent authority to initiate such a proceeding against the petitioner in view of the definition of the competent authority as defined in Section 2(1)(g) of the said regulation. Since the Chairman of the said Bank lacks jurisdiction inherently to initiate such proceeding, we hold that such illegality should be nipped in the bud as the order passed by such an authority are all void orders. 20. Let us now consider the manner in which the disciplinary proceeding was conducted by the disciplinary authority and/or the enquiry officer right from the beginning and further whether conduct of enquiry in such manner can be supported by the court of law. 21. The charge-sheet was issued without supplying the list of witnesses and list of documents relying on which charges were framed against the petitioner. The petitioner however, replied to the said charges. He sought for supply of the list of witnesses and list of documents relying on which the charges were framed, from the enquiry officer. Those documents were not supplied to the petitioner by the enquiry officer. The enquiry officer proceeded with the said proceeding without supplying the list of documents and the list of witnesses to the writ petitioner. The writ petitioner prayed for change of the enquiry authority by complaining against the enquiry authority about his biasness as he wanted to proceed with the said disciplinary proceeding without supplying the list of documents and the list of witnesses to the writ petitioner. The disciplinary authority did not allow such prayer of the petitioner. The petitioner also requested for change of venue for holding this proceeding by the enquiry officer as it would not be possible for the writ petitioner to participate in the said proceeding because of this distance factor. The disciplinary authority did not allow such prayer of the petitioner. The petitioner also requested for change of venue for holding this proceeding by the enquiry officer as it would not be possible for the writ petitioner to participate in the said proceeding because of this distance factor. Though the petitioner was posted at West Midnapur, the venue for holding such enquiry proceeding was fixed at Berhampur, Murshidabad. Such prayer was also not allowed by the authority concerned, as the voluminous documents on which reliance were placed by the said disciplinary authority were lying at the head officer at Berhampur, Murshidabad. 22. Thereafter, the proceeding was concluded ex parte. However, immediately one day before conclusion of the hearing, a list of documents on which the presenting officer relied upon, was supplied to the petitioner, but the documents were not supplied. It is only after the conclusion of hearing, the documents on which the presenting officer and the disciplinary authority relied upon before the enquiry Officer were supplied to the petitioner along with the report of the enquiry officer. On receipt of the report of the enquiry officer and the documents as mentioned above, the petitioner requested the disciplinary authority to supply some other documents which according to the petitioner were relevant for controverting the report of the enquiry officer. Even those documents were not supplied to the petitioner. Under the facts and circumstances, as stated above the petitioner replied to the enquiry officer's report. The petitioner claims that since the documents which were demanded by the petitioner were not supplied to the petitioner, the petitioner could not reply to the report of the enquiry officer comprehensively. 23. However, the Chairman of the said bank was not satisfied with the reply given by the petitioner to the report of the enquiry officer and as such he has proposed the penalty by way of dismissal of the petitioner from service. 24. Challenging the said proposal for awarding penalty by way of dismissal of the petition, the petitioner earlier moved a writ petition. However, the said writ petition was dismissed by the learned Single Judge of this Court as the petitioner moved the said writ petition without exhausting the remedy by way of departmental appeal before the Appellate Forum. Challenging the said order passed by the learned Single Judge of this Court a Mandamus Appeal was filed by the writ petitioner. However, the said writ petition was dismissed by the learned Single Judge of this Court as the petitioner moved the said writ petition without exhausting the remedy by way of departmental appeal before the Appellate Forum. Challenging the said order passed by the learned Single Judge of this Court a Mandamus Appeal was filed by the writ petitioner. The said Mandamus Appeal was also disposed of without considering the merit of the said appeal; however, by granting liberty to the petitioner to challenge the final order of punishment awarded against the petitioner by filing a fresh writ petition as final order of punishment was passed by the disciplinary authority during the pendency of the appeal. The present appeal arises out of the order passed in the subsequent writ petition which was filed by the petitioner in terms of the liberty granted by the Appeal Court earlier, as mentioned above. 25. In our view, non-supply of the list of documents and the list of witnesses along with the charge-sheet by the disciplinary authority and even non-supply of the documents which were relied upon by the Enquiry Officer to support of its ultimate conclusion to the petition before conclusion of hearing amounts to gross violation of the principles of natural justice. 26. That apart most of the charges levelled against the petitioner were framed on the basis of the complaint made by the customers for utilization of their money for the personal gain of the petitioner. No complainant came forward to prove such allegation in course of hearing of the proceeding before the enquiry officer. There is no direct evidence of utilization of the money of the complainant by the petitioner. Even there is no hearsay evidence regarding utilization of the money of the complainant by the petitioner. As a matter of fact, no witness was examined by the employer to prove the charges levelled against the petitioner. The charges which were levelled against the petitioner are such which cannot be proved even by documentary evidence as it is not the allegation of any of the complainants that the bearer cheques of the customers were either handed over to the petitioner directly or were encashed by him personally. The charges which were levelled against the petitioner are such which cannot be proved even by documentary evidence as it is not the allegation of any of the complainants that the bearer cheques of the customers were either handed over to the petitioner directly or were encashed by him personally. The compliant is that bearer cheques were given to the peon of the bank who encashed it and handed over the money to the petitioner and subsequently, the said money was returned to the complainant. These allegations cannot even be proved by documentary evidence as the allegation of encashment of the cheque by the petitioner cannot even be proved by the bank document as admittedly those cheques were not encashed by the writ petitioner. 27. In our view, the allegations of such nature are required to be proved by the compliant and the other persons who were connected with such transaction which having not been done in the instant case, we cannot agree with the conclusion drawn by enquiry officer/disciplinary authority. 28. Certain other allegations were also made against the writ petitioner as he did not comply with certain directions of the higher authority for restoration of the deleted data relating to certain transactions of a customer of the bank in his savings bank account. This charge was also denied by the petitioner. He stated that he was never asked by the higher authority to restore the deleted date relating to the bank account of the said customer. Such a disputed question, in our view, is required to be resolved with reference to the evidence of the parties. Here the employee did not appear but at the same time the employer also did not lead any evidence in this regard, to support such allegation. In our view, for coming to the conclusion that such allegations made against the employee are proved, some sort of evidence from the side of the employer is necessary. Neither any oral evidence is forthcoming nor any documentary evidence is forthcoming to prove such allegation of the employer against the petitioner. 29. In our view, for coming to the conclusion that such allegations made against the employee are proved, some sort of evidence from the side of the employer is necessary. Neither any oral evidence is forthcoming nor any documentary evidence is forthcoming to prove such allegation of the employer against the petitioner. 29. Thus, considering the overall facts and circumstances as stated above, we are of the view that the disciplinary proceeding was initiated by an authority lacking inherent jurisdiction to initiate such proceeding and the disciplinary proceeding was conducted without following the principles of natural justice and as such, the disciplinary proceeding should be nipped in the bud. The disciplinary proceeding thus, stands quashed. Consequently, the punishment which was awarded against the petitioner in the said proceeding, cannot be retained. 30. It is however, made clear that this order will not preclude the disciplinary authority to initiate further proceeding against the petitioner in accordance with the law even for the charges which have already been framed, if the competent authority satisfies himself about the justifiability of framing such charges against writ petitioner. 31. Needless to mention here, if such disciplinary proceeding is initiated by the competent authority, that will be concluded by the competent authority in accordance with the regulation as mentioned above. The inevitable consequence of this order, is reinstatement of the writ petitioner/appellant in service within a month. 32. However, issue regarding payment of the back wages to the writ petitioner/appellant is left to the discretion of the employer who is directed to take a decision in this regard in accordance with law within two months. 33. The impugned order is thus, set aside. 34. The appeal is thus, allowed. 35. Both the appeal and application, are thus disposed of. 36. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. I agree.