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2023 DIGILAW 416 (MP)

Shailesh Bindua v. Bank of India

2023-03-27

RAVI MALIMATH, VISHAL MISHRA

body2023
ORDER 1. Appellant Shri Shailesh Bindua is present in the Court. He submits that left leg of the counsel Shri Narmada Prasad Choudhary is fractured. That his son Shri Amit Choudhary, who is also an Advocate in the Court is busy to attend his father. 2. Heard appellant in person. 3. Assailing the order dated 21.12.2022 passed by the learned Single Judge in disposing off the Writ Petition No.23594 of 2022, the writ petitioner is in appeal. 4. The case of the writ petitioner is that he was working in the respondent Bank as Scale-III employee and was posted at Nagda Branch of Madhya Pradesh. He joined the Bank service on 27.8.2010 as a Probationary Officer. Subsequently, he was promoted as M.M. Grade-II Officer and thereafter in Scale-III on 1.6.2019. Lastly, he was posted as Senior Manager, Nagda Branch, Madhya Pradesh from 17.12.2019 till the filing of petition. He was placed under suspension vide order dated 22.1.2020. After suspension, the authorities have failed to issue charge-sheet in 90 days. He preferred an appeal against his suspension order on the ground that suspension is not permissible beyond three months in terms of the Circular of the Bank dated 23.10.2020. The respondents have issued a charge-sheet to the writ petitioner on 2.8.2022, but the attested copy of the documents and statements of witnesses were not supplied to him. A request was made by the writ petitioner to supply all the documents to enable him to submit a reply. There was a refusal to supply the copies of the documents by the respondent Bank vide letter dated 24.8.2022. He again made a representation on 29.8.2022, but instead of supplying the documents, a departmental enquiry was instituted against him and an enquiry officer was being appointed. It is his case that in view of the circular dated 24.7.1980 a time limit has been prescribed for taking a disciplinary action against an employee of the Bank. The allegation in the charge-sheet is with respect to a transaction which took place on 16.9.2016 for which a charge-sheet has been issued on 2.8.2022 i.e. after five years, ten months and sixteen days, therefore, the same is highly belated and not maintainable. Therefore, he preferred a writ petition. He has placed reliance upon certain judgments of the Hon’ble Supreme Court in support of his arguments. Therefore, he preferred a writ petition. He has placed reliance upon certain judgments of the Hon’ble Supreme Court in support of his arguments. The learned writ Court has disposed off the writ petition on the ground that an appeal against the suspension order is pending consideration and has directed to take a decision within 60 days on the appeal preferred by the writ petitioner. As far as issuance of charge-sheet is concerned, the same was dismissed in view of the judgment of the Hon’ble Supreme Court in the case of Union of India and another v. Kunishetty Satyanarayan reported in (2006) 12 SCC 28 . Therefore, the appeal has been preferred. 5. After arguing at length, writ petitioner has fairly submitted before this Court that the statements of witnesses have been recorded and now only the report remains to be submitted. His suspension has already been revoked. It is argued that as he was not being provided proper opportunity of hearing in the departmental enquiry coupled with the fact that the charge-sheet has been issued with a considerable delay, the same is unsustainable. The fact remains that the proceedings of the departmental enquiry has already been completed. Now, the enquiry officer has to submit his final report. The writ petitioner has actively participated in the departmental enquiry. At the fag end of departmental enquiry, it cannot be argued that he was not being granted ample opportunity of hearing. Considering the fact that the entire departmental enquiry proceedings are over, wherein the writ petitioner has actively participated and only final order based upon the report is to be passed, no relief as claimed can be extended. 6. The law is well settled with respect to the cases of departmental enquiry as has been held by the Hon’ble Supreme Court in the case of Kunishetty Satyanarayan (supra), wherein the Hon’ble Supreme Court has held as under :-- “13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another v. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467 , Ulagappa and others v. Divisional Commissioner, Mysore and others 2001(10) SCC 639 , State of U.P. v. Brahm Datt Sharma and another AIR 1987 SC 943 etc. Ghulam Ghouse and another AIR 2004 SC 1467 , Ulagappa and others v. Divisional Commissioner, Mysore and others 2001(10) SCC 639 , State of U.P. v. Brahm Datt Sharma and another AIR 1987 SC 943 etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.” 7. From the arguments advanced before this Court, it is clear that the final decision is yet to be taken by the disciplinary authority. It is argued by the writ petitioner that he is apprehending that the Bank Authorities will make an adverse order against him to the extent of expelling him from services. The same is only an apprehension being raised by the writ petitioner. The authorities are yet to go through the enquiry report and to take a final decision in the matter. Therefore, the apprehension raised by the writ petitioner cannot be addressed at this juncture. The same is only an apprehension being raised by the writ petitioner. The authorities are yet to go through the enquiry report and to take a final decision in the matter. Therefore, the apprehension raised by the writ petitioner cannot be addressed at this juncture. As far as suspension of the writ petitioner is concerned, the writ petitioner has fairly submitted that the suspension has already been revoked. Therefore, the relief which has been claimed as far as suspension is concerned has rendered infructuous. 8. In view of the aforesaid analysis of the case, no illegality is committed by the writ Court in disposing off the writ petition. 9. The appeal sans merit and is accordingly dismissed. No order as to costs. 10. Counsels Shri Hobert Pereira and Shri Naman Kumar Upadhyay are absent today. 11. Counsel for respondents No.1 and 2 has filed an application for adjustment for 27.3.2023 to 1.4.2023. In view of the adjustment note filed by him, he is adjusted today. 12. In terms of the order dated 24.3.2023 passed in W.P. No.7295 of 2023 (In Reference (Suo Moto) v. Chairman, State Bar Council of M.P. and others), all the advocates were directed to attend to the Court work forthwith. In spite of the same, there were certain advocates who appeared on 25.3.2023 and certain who did not. 13. In view of the fact that there may be a possibility that each and every advocate may not be aware of the order passed on 24.3.2023, they were extended the benefit of doubt so far as 25.3.2023 is concerned. 14. On behalf of appellant Shri Hobert Pereira and Shri Naman Kumar Upadhyay, Advocates have also entered Vakalat. However, both the counsels, who are also appearing for the appellant are deliberately absent today. 15. Hence, issue a show cause notice against them as to why proceedings for contempt should not be initiated for disobeying the order dated 24.3.2023 passed in W.P. No.7295 of 2023 and to submit reply by 10.4.2023.