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2019 DIGILAW 397 (ORI)

National Bank For Agriculture & Rural Development v. Durgaprasad Sangramjit Mallick

2019-05-17

A.K.MISHRA, S.K.MISHRA

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JUDGMENT : A. K. MISHRA, J. 1. This writ appeal is preferred by the opposite party to assail the judgment dated 04.05.2018 in W.P.(C) No.11136 of 2007 in remitting the matter back to the competent authority to decide the appeal afresh after providing opportunity of hearing to the petitioner within a reasonable period, preferably within a period of eight weeks from the date of receipt of copy of the order. 2. While remitting the matter, learned Single Judge has arrived at the conclusion that the National Bank for Agricultural and Rural Development (NABARD) being directly under the control of Central Government and the petitioner an officer under that having been dismissed from service without getting an opportunity of hearing, the writ Court has jurisdiction to look into the matter under Article, 226 of the Constitution of India and the writ petition is maintainable. Added to that, learned Single Judge, also found that petitioner-officer had made allegation of malafide against the management in inflicting punishment of dismissal from service and the order of the appellate authority communicated under Annexure-13 dated 04.01.2007 was bereft of reasons for which the delinquent officer was not able to know the mind of the appellate authority. 3. Learned Sr. Counsel, Mr. J. K. Tripathy submitted that learned Single Judge, without considering the constitutional Bench decision has recorded finding in-affirmative to the effect that the writ petition was maintainable. It is further submitted that the opportunity given to the delinquent officer in course of departmental proceeding was not availed of by him and the appellate authority, who was the Executive Committee of the Board of the Directors having accepted the reasoning of competent authority, there was nothing wrong in communicating the result of appeal. Lastly, it is submitted by learned Sr. Counsel, Mr. Tripathy that, respondent-officer having not refuted any of the findings of the charges of the competent authority even after coming to know from the filing of counter affidavit under Annexure-L, no fruitful purpose would be served by remitting the matter for fresh consideration. The respondent in person refuted the above submission stating that the order communicated under Annexure-13 of the appellate authority does not disclose any reason for which his right to know that his contention made before the appellate authority was adjudicated has been violated and the well reasoned impugned Judgment does not warrant any interference in the appeal. 4. The respondent in person refuted the above submission stating that the order communicated under Annexure-13 of the appellate authority does not disclose any reason for which his right to know that his contention made before the appellate authority was adjudicated has been violated and the well reasoned impugned Judgment does not warrant any interference in the appeal. 4. The respondent-officer joined as an officer of the NABARD on 25.07.1985. He was departmentally proceeded with on 19.02.2004 for the following four charges:- "(1) Availing loans from outside agencies without taking permission from National Bank and not liquidating the same. (2) Non-submission of statements on liability (secured and unsecured) and documentary evidence thereof. (3) Nomination of attending the training programme from 14-26 July, 2003 as advised vide RO's letter No.89 dtd.26th May, 2003 and non-attendance of the programme by the CSO. (4) Failure of the CSO to report to the new centre of posting (Kerala Regional Office)." The respondent officer was noticed to appear through paper publication. He prayed to defer the inquiry but the inquiry was concluded in one day. He was dismissed from service on 26.08.2005 pursuant to the departmental inquiry wherein he was found guilty of the charges. He preferred appeal on 7.11.2005 before the Chairperson, NABARD. As the Chairman demitted the office and the Managing Director had acted as a competent authority, the appeal was placed before the Executive Committee of the Board of Directors of NABARD as per the Staff Rules. The Executive Committee in its ninety-second meeting held on 30.10.2006 considered the appeal and rejected the same. The ultimate result was communicated vide Head Office letter dated 4.1.2007 under Annexure-13. 5. We patiently heard the submissions made by learned counsel for the appellants and the respondent. Peruse the record meticulously. 6. Annexure-13 of the writ petition does not disclose anything else than that Executive Committee on 30.10.2006 has dismissed the appeal filed by the officer Durgaprasad Sangramjit Mallick on 7.11.2005 (Translated from Hindi byus). 5. We patiently heard the submissions made by learned counsel for the appellants and the respondent. Peruse the record meticulously. 6. Annexure-13 of the writ petition does not disclose anything else than that Executive Committee on 30.10.2006 has dismissed the appeal filed by the officer Durgaprasad Sangramjit Mallick on 7.11.2005 (Translated from Hindi byus). Learned Single Judge has quoted the minutes of the meeting of the Executive Committee dated 30.10.2006 which was made as Annexure-L to the counter affidavit in the impugned judgment and substantially it was noted therein that; "As no fresh valid points had been made by Sri Mallick in support of his case, the Executive Committee agreed with the final order passed by the competent authority and decided to reject the appeal preferred by him." We do agree that the above order is unspeakable in nature and has not given explicit reasons in support of conclusion of dismissal. Learned Single Judge has drawn support from the cited decisions rendered by the Hon'ble Supreme Court and we do not find any reason to run contrary to that. In our considered opinion, the order communicated is non-speaking order and appellate authority being a Quasi Judicial Body cannot shirk its responsibility from giving any reason for the conclusion. 7. With regard to maintainability of the writ petition, the contention of learned Sr. Counsel that judgment of constitutional bench of the Hon'ble Apex Court was not considered is not correct. The learned Single Judge has considered the ratio of the constitutional Bench judgment of the Hon'ble Apex Court in the case of Ajay Hasia and others-vs- Khalid Mujib Sehravardi and others, (1981) 1 SCC 722 . That judgment was cited by learned counsel for the appellant. In that judgment Dr. S. L. Agarwal case has been referred to. As per ratio of that decision, the NABARD is found to be a creation of statute and writ under Article 226 of the Constitution is maintainable. The petitioner was appointed by the NABARD and he would not be left remediless for the dismissal from service. The learned Single Judge has not gone into the merits of that matter. We do not think it proper to go into the factual aspect to ascertain as to whether any relief could be given to the delinquent officer in the writ preferred by him challenging his dismissal. The learned Single Judge has not gone into the merits of that matter. We do not think it proper to go into the factual aspect to ascertain as to whether any relief could be given to the delinquent officer in the writ preferred by him challenging his dismissal. The violation of principle of natural justice, flagrant disregard of the rules of procedure, error apparent on the face of the record and question of jurisdiction in the decision making process are amongst others to be looked into factually but the same has no bearing to the question of maintainability of the writ petition. Maintainability of a writ petition is a different aspect from exercising writ jurisdiction to address the remedy. The exercise of jurisdiction in the facts of the case is yet to be done. By remitting this matter, it cannot be said that all the points which are required to be considered on merit have been gone into. The above analysis inevitably leads to a conclusion that impugned judgment does not suffer from any infirmity and no interference in this appeal is called for In the result the writ appeal stands dismissed. There shall be no order as to costs.