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2024 DIGILAW 1171 (CAL)

Mina Roy v. Central Bank of India

2024-06-21

RAJA BASU CHOWDHURY

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JUDGMENT : Raja Basu Chowdhury, J. 1. The present writ petition has been filed, inter alia, challenging the disciplinary proceeding as also the order of dismissal passed by the respondent no. 6. 2. It is the petitioner’s case that the petitioner had participated in the selection process initiated by the respondent no. 2 for recruitment of Safai Karmachari cum Sub-Staff and/or Sub-Staff in the Central Bank of India. Upon being successful, the petitioner had been appointed in the sub staff cadre on probation with effect from 9th February, 2013, and subsequently confirmed on permanent roll in the post of Sub-Staff. In course of her employment, the petitioner was served with a memorandum dated 11th March, 2016 alleging that the school leaving certificate (Transfer certificate) dated 2nd May 1991 issued by Katamari High School which was submitted by the petitioner at the time of her appointment in the bank appears to be not genuine. Accordingly, the petitioner was directed to submit a written explanation within 7 days from the date of receipt of the said memorandum as to why disciplinary action should not be initiated against the petitioner. 3. Consequent upon receipt of the aforesaid memorandum, the petitioner had submitted her reply, inter alia, claiming that she was a bonafide student of Katamari High School, Post office – Elajanerkuthi, District – Cooch Behar and that she had obtained the said transfer certificate at the time of leaving the school. Records reveal that the petitioner was subsequently served with a charge sheet dated 26th September, 2016. The petitioner duly participated in the said enquiry. Ultimately, after conclusion of the enquiry, the findings of the enquiry were forwarded to the petitioner under cover of letter dated 31st March, 2017 by the disciplinary authority, for the petitioner to respond to the same. 4. The petitioner had duly made a representation to the enquiry officer’s report and ultimately, by a communication in writing dated 6th July, 2017, the disciplinary authority of the petitioner had issued a show cause notice informing the petitioner that he agrees with the findings of the enquiry officer and that the charges leveled against the petitioner stood proved and also proposed to punish the petitioner in terms of Clause 6(a) of the Memorandum of Settlement dated 10th April, 2002. 5. Challenging the aforesaid, a writ petition being WP No. 20642(W) of 2017 had been filed. 5. Challenging the aforesaid, a writ petition being WP No. 20642(W) of 2017 had been filed. Such petition was, however, dismissed by 8th order dated September, 2017 on the ground of alternative remedy by recording that the order of dismissal had been served on the petitioner on 31st July, 2017. 6. It is, however, the petitioner’s case that by a communication dated 1st 26th July, 2017, which was served on the petitioner on September, 2017, the petitioner was communicated with the decision of the disciplinary authority dismissing the petitioner from service without notice, under Regulation 6(a) of the Memorandum of Settlement on Disciplinary Action Procedure for Award Staff dated 10th April, 2002. The petitioner contends that the earlier writ petition was against the show-cause notice proposing dismissal. The dismissal of such petition does not debar the petitioner from challenging the order of dismissal. The cause of action for the previous petition and the present one is different. 7. On merits, Mr. Samanta, learned advocate appearing for the petitioner, by drawing attention of this Court to the communication dated 31st March, 2017, submits that when the disciplinary authority had forwarded the findings of the enquiry officer to the petitioner, he had already made up his mind as regards the guilt of the petitioner, and had accordingly, agreed with the findings of the enquiry officer’s report. The agreement of the disciplinary authority with the findings of the enquiry officer would corroborate from the communication dated 31st March, 2017. This, according to the petitioner, has infringed upon the petitioner’s right to defend herself against the charges leveled against her and constitutes denial of reasonable opportunity to prove her innocence. In support of the aforesaid contention, Mr. Samanta places reliance on a judgment of the Hon’ble Supreme Court delivered in the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar and Others, reported in (1993) 4 SCC 727 . 8. It is submitted that in a similar case, this Court by its judgment and order dated 8th March, 2024 passed in WPA 23512 of 2017 was, inter alia, pleased to interfere with the final order of the disciplinary authority and had set aside the same with liberty to proceed afresh from the stage from which the delinquent had been denied the opportunity to defend. He submits that in the given facts the petitioner should be afforded with similar relief. 9. Mr. He submits that in the given facts the petitioner should be afforded with similar relief. 9. Mr. Jha, learned advocate appearing for the respondent Bank, submits that this is not a case of denial of the principles of natural justice. It is submitted that not only the petitioner was served with the charge sheet but was afforded with a reasonable opportunity of hearing. After the enquiry was concluded, the petitioner was served with the findings of the enquiry officer. The petitioner had responded to the findings of the enquiry officer and such fact would corroborate from the communication dated 6th July, 2017 wherefrom it would appear that the disciplinary authority had taken note of the representations made by the petitioner. 10. Mr. Jha, however, submits that simply because the disciplinary authority in his communication dated 31st March, 2017 had recorded his agreement with the findings of the enquiry officer, the same cannot have the effect of vitiating the enquiry proceeding or the final order passed by the disciplinary authority. It is submitted that the disciplinary authority not being a legally trained person had expressed himself in simple words. Recording of his agreement with the findings of the enquiry officer should be ignored, as by the self same communication he had called for representation from the petitioner, which was also duly considered prior to holding the petitioner guilty. 11. In the enquiry it was proved that the certificate in question was not genuine and hence, no interference is called for by this Court. 12. Heard the learned advocates appearing for the respective parties and considered the materials on record. 13. Admittedly, in this case I find that the petitioner was charge sheeted. Relevant portion of the charge sheet as regards the allegations leveled against the petitioner is extracted hereinbelow: - “The School Leaving (Transfer) Certificate no 723 dated 02.05.1991 of Katamari High School PO – Elajanerkuthi Dist. Coochbehar submitted by Ms. Mina Roy as part of documents for getting appointment in Banks Service on 08/02/2013 is found not to be genuine during Banks internal investigation. Her above act of knowingly making a False Statement in a Document in connection with his employment in the Bank is treated as Gross Misconduct and she is charged under clause 5(m) of Memorandum of Settlement dated 10/04/2002 on Disciplinary Action Procedure for Award Staff.” 14. Following the aforesaid, an enquiry was conducted. Her above act of knowingly making a False Statement in a Document in connection with his employment in the Bank is treated as Gross Misconduct and she is charged under clause 5(m) of Memorandum of Settlement dated 10/04/2002 on Disciplinary Action Procedure for Award Staff.” 14. Following the aforesaid, an enquiry was conducted. The petitioner had put up a defense and ultimately, the enquiry officer had concluded the enquiry. It is not the case of the parties that the enquiry officer had committed any irregularity in procedure in conducting the enquiry. The petitioner also does not contend that there had been violation of the principles of natural justice before the enquiry officer. 15. I, however, notice that prior to giving an opportunity to the petitioner, for the petitioner to respond to the findings of the enquiry officer, the disciplinary authority had taken a decision as regards the guilt of the petitioner by expressing his agreement with the findings of the enquiry officer. Although, it is true that the disciplinary authority did forward a copy of the enquiry report to the petitioner for the petitioner to respond to the same, in my opinion, such response subsequent to the decision of the disciplinary authority, as is reflected in the communication dated 31st March, 2017 could not have afforded appropriate opportunity to the petitioner to prove her innocence. 16. It is well settled that where an enquiry is conducted by a person other than the disciplinary authority, it is obligatory for the disciplinary authority, prior to accepting the findings rendered by the enquiry officer, to forward the findings thereof, to the delinquent employee, for the delinquent employee to respond to the same and it is on the basis of the representation to be made by the delinquent employee that the final decision in that regard can be taken by the disciplinary authority. 17. Denial of such opportunity to the delinquent employee to prove his innocence has been held to be in breach of the principles of natural justice. In this context, I find support from the judgment delivered by the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad (supra). To morefully appreciate the same, paragraph 29 of the above the judgment is extracted hereinbelow: “29. In this context, I find support from the judgment delivered by the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad (supra). To morefully appreciate the same, paragraph 29 of the above the judgment is extracted hereinbelow: “29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” 18. Having regard to the aforesaid, I am of the view that the subsequent consideration of the petitioner’s representation by the disciplinary authority after the disciplinary authority having agreed with the findings of the enquiry officer, cannot be sustained as the disciplinary proceeding stands vitiated from the stage when the disciplinary authority by his communication dated 31st March, 2017 had expressed his agreement with the findings of the enquiry, prior to making the findings of the enquiry officer available to the petitioner for the petitioner to respond to the same. 19. Since, the aforesaid has the effect of vitiating the enquiry at least from the stage of communication of the enquiry report on the ground of violation of principles of natural justice, I am of the view that alternative remedy is no bar for entertaining the petition. Further the point of maintainability was not raised at the time of admission of petition when by order dated 18th September, 2018, directions were issued for exchange of affidavit. As such at this belated stage, directing the petitioner to first exhaust alternative remedy would be travesty of justice. 20. In view thereof, the disciplinary proceeding from the stage of communication of the enquiry report including the final order of dismissal stands set aside. 21. Since, the petitioner has already been made available with a copy of the enquiry report, the petitioner shall be at liberty to file a response to the same. 20. In view thereof, the disciplinary proceeding from the stage of communication of the enquiry report including the final order of dismissal stands set aside. 21. Since, the petitioner has already been made available with a copy of the enquiry report, the petitioner shall be at liberty to file a response to the same. If the petitioner responds to the aforesaid enquiry report within a period of four weeks from date, the disciplinary authority shall take a reasoned decision in the matter in accordance with the relevant rules. 22. The aforesaid judgment and order shall not entitle the petitioner to reinstatement. 23. It is made clear that the respondents shall be at liberty to continue with the disciplinary proceeding from the stage of submissions of the enquiry report, and the final order shall be passed by the disciplinary authority within a period of eight weeks from the date of communication of this judgment and order. If no response is received from the petitioner within the time specified hereinabove, the disciplinary authority shall decide the matter ex parte. 24. With the aforesaid observations and directions, the writ petition being WPA 25034 of 2017 is partly allowed. 25. There shall be no order as to costs. 26. Urgent Photostat certified copy of this order, if applied for, be made available to the parties on priority basis upon compliance of requisite formalities.