HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No.14833/2011) Betul Nagrik Sahkari Bank Maryadit Vs. Arvind Yadav (Writ Petition No.18758/2011) Arvind Yadav Vs. Betul Nagrik Sahkari Bank Maryadit PRESENT : HONOURABLE SHRI JUSTICE AJIT SINGH HONOURABLE SHRI JUSTICE SANJAY YADAV Counsel for petitioner Shri Anil Lala, Advocate in W.P. No. 14833/2011 and Shri Bhawan Singh, Advocate in W.P. No. 18758/201 Counsel for respondent Shri Bhagwan Singh, Advocate in W.P. No. 14833/2011 and Shri Anil Lala, Advocate in W.P. No. 18758/2011 O R D E R (07/12/2012) The following order of the Court was delivered by Sanjay Yadav, J : Order dated 12.8.2011 passed by M.P. Co operative Tribunal is being assailed vide these two writ petitions. By this order the Tribunal affirms the order dated 8.10.2010 passed by Joint Registrar, Cooperative Societies, Hoshangabad; whereby, the order dated 30.5.2008, terminating the services of respondent (in W.P. No. 14833/2011) in a departmental inquiry has been setaside holding that that the inquiry proceedings got vitiated for not affording reasonable opportunity of hearing. W.P. No. 14833/2011 2 W.P.No. 18758/2011 2. By impugned order the Tribunal upheld the order passed by the Joint Registrar but declined to grant backwages to the respondent employee. 3. The petitioner employer vide W.P. No. 14833/2011 challenges the order on the ground that the same suffers from material irregularity as the Tribunal has failed to appreciate that the facts in right perspective and though there were ample material on record to bring home the fact that proper opportunity was granted to the respondent employee, but he himself did not avail the same and for that the employee himself was to be blamed and this aspect of the matter having been ignored by the Tribunal, perversity has crept in the order.
4. It is contended that the Tribunal has also failed to appreciate that though the respondent having failed to establish that any prejudice being cause to him from appointment of an inquiry officer facing criminal charges in a criminal prosecution; wherein, the respondent is the prosecution witness; has erred in holding that the inquiry officer ought to have been changed and his continuance vitiates the inquiry.
5. The respondent employee vide W.P. No. 18758/2011 passed by the Tribunal on the anvil that the Tribunal has erred in declining to grant backwages without appreciating the fact that during the period when he was terminated from service he was not gainfully employed. 6. Since the challenge in both these writ petition is to a common order dated 12.8.2011 passed by Tribunal, these petitions were analogously heard.
7. Relevant facts given rise to the controversy in nutshell are that the respondent employee was employed as Branch Manager while employed in the services of Betul Nagrik Sahkari Bank Maryadit. The petitioner was proceeded against in a departmental inquiry initiated with the issuance of chargesheet on 22.2.2002; whereby, six charges were levelled against him regarding the conduct which was alleged to be in congenial with the Nagrik Sahkari Bank, Karmachari Seva W.P. No. 14833/2011 3 W.P.No. 18758/2011 Niyam (Niyojan, Nirbandhan Tatha Unki Karya Sthiti) Niyam, 1993. On denial of charges, departmental inquiry was instituted which culminated into establishment of charges against him resulting in order dated 28.8.2002; whereby, his services were terminated. The order was challenged by respondent employee in a proceeding under Section 55 (2) of M.P. Cooperative Societies Act, 1960 before Joint Registrar, Cooperative Societies, Bhopal, who by his order dated 17.11.2005 set aside the punishment order on the ground that no reasonable opportunity of hearing was afforded to the respondent employee. The order was upheld by the Tribunal in appeal No. 163/2005. By order dated 17.4.2007 the matter was thus remitted for further inquiry. When the matter at this stage certain additional charges were levelled against respondent employee, which he challenged vide W.P. No. 778/2007, which was allowed on 11.7.2007 by directing the petitioner Bank to conduct inquiry only on the basis of earlier chargesheet dated 22.2.2002.
8. On remand the inquiry was restarted; wherein, respondent employee participated on 25.7.2007, 7.8.2007, 27.8.2007 and 19.9.2007. However, thereafter since he did No. participate on 7.10.2007 and 18.10.2007 he was proceeded ex parte leading to completion of departmental inquiry ex parte. On 30.5.2008 the respondent employee was served with a show cause notice along with inquiry report. Thereafter by order dated 5.6.2008 he was removed from service as the charges levelled against him were found proved. 9. Respondent employee challenged the order in a proceeding under Section 55 (2) before Joint Registrar, Cooperative Societies, Narmadapuram Division, Hoshangabad who by his order dated 8.10.2010 set aside the punishment order; however, declined to grant backwages to the respondent employee. The petitioner Bank aggrieved by the said order preferred an appeal before the Tribunal. No appeal, however, was preferred by the respondent employee. Tribunal by impugned order dated 12.8.2011 upheld the order passed by Joint Registrar and accordingly dismissed the appeal W.P. No. 14833/2011 4 W.P.No. 18758/2011 preferred by the petitioner Bank. Aggrieved whereby the present writ petition has been filed.
10. The impugned order has been questioned on two grounds; firstly, that the Joint Registrar as well as the Tribunal failed to appreciate that there was ample material on record to show that despite of reasonable opportunity given to respondent employee he did No. participate in the inquiry and deliberately remained to absent. Leading the inquiry officer to proceed ex parte, it is urged that since it was the respondent employee who was to blame himself for not appearing in the proceedings, the proceedings ought not to have been set aside on the ground that reasonable opportunity of hearing was No. afforded to the respondent employee. To bring home the said submission, learned counsel for the petitioner Bank has led us through the proceedings brought on record as Annexure P8 as also relied on the decision in State Bank of India v. Hemant Kumar [(2011) 11 SCC 355]. and State Bank of India and others v Bidyut Kumar Mitra and others [(2011) 2 SCC 316]..
11. In Bidyut Kumar Mitra (supra) the fact of nonsupply of recommendations of Chief Vigilance Commissioner in a departmental inquiry was analyzed. It was held that since a disciplinary authority has No. relied on any recommendation of C.V.C and the respondent has failed to plead or prove any prejudice having been caused, the disciplinary proceedings cannot be said to have been prejudiced.
12. In Hemant Kumar (supra) the fact of employee's failure to participate in inquiry proceedings despite three opportunities given and the inquiry officer proceeding with inquiry ex parte resulting in dismissal of employee has been held to be not a denial of reasonable opportunity and that the principle of natural justice canNo. be stretched to a point where they would render the inhouse proceedings unworkable.
13. In the case at hand it is observed from the order passed by Joint Registrar as well as the Tribunal that in respect of supply of documents there is a clear finding that the same was duly supplied to W.P. No. 14833/2011 5 W.P.No. 18758/2011 the respondent employee and the inquiry proceeding has not been intercepted on that count. The inquiry proceeding has been held to be vitiated on the ground that having the inquiry officer proceeded ex parte was still required to take into account the entire material on record which were brought by way of defence. The Tribunal observed that the inquiry officer has failed to appreciate the fact of the defence taken by the respondent employee in the charges levelled against him. The Tribunal held that the inquiry was under obligation to have analyzed the same.
14. We perceive no error in the approach by the Tribunal. Being a quasi judicial authority the inquiry officer is under an obligation to analyze the entire material on record and not to brush aside even the material putforth in defence merely because the delinquent has chosen to remain ex parte. In absence of such analysis the finding which has been affirmed by the disciplinary authority gets vitiated as the same are based on incomplete appreciation of evidence on record. We find no force in the contention putforth on behalf of petitioner Bank that the Joint Registrar as well as the Tribunal erred in intercepting with the inquiry proceeding. Contention accordingly fails.
15. It is next urged by learned counsel for the petitioner Bank that the Tribunal in absence of any material on record of prejudice being caused because by appointment of inquiry officer facing a criminal charge wherein the delinquent is a witness, is No. justified in vitiating the inquiry from the stage of appointment of inquiry officer merely on the ground that there is a real likelihood of bias. Bias means 'a leaning of the mind; prepossession; inclination; propensity toward an object; bent of mind which sways a judgment' that which sways the mind towards one opinion rather than another'. It is not synonymous with prejudice. A man cannot be prejudiced another without being biased against him; but he may be biased within prejudice (Please see the P Ramanatha Aiyar Lax Lexicon).
16. Trite it is that an inquiry officer discharges a quasi judicial function [Union of India and others v. Prakash Kumar Tandon : W.P. No. 14833/2011 6 W.P.No. 18758/2011 (2009) 2 SCC 541 and Roop Singh Negi v Punjab National Bank and others (2009) 2 SCC 570]..
17. In the case at hand apparent it is from record that an offence under Sections 406, 420 IPC has been registered against the inquiry officer; wherein, the respondent employee is one of the witnesses. That being so it would have been fair on the part of the disciplinary authority to have appointed some other inquiry officer as there is always a likelihood of the existing of present inquiry officer carries a bias against the respondent employee.
18. In A.K. Kraipak and others v. Union of India and others (AIR 1970 SC 15), it is observed:
“15. ..... ....The real question is No. whether he was biased. It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that he was likely to have been biased........ ..... ....There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. ..... ...... .....”
19. In the given facts of the present case the real likelihood of an inquiry officer facing a criminal charge conducting an inquiry against the delinquent who is a witness against such inquiry officer reasonable likelihood of bias cannot be ruled out. In view whereof the Tribunal is justified in drawing a conclusion that the appointment of inquiry officer vitiates the proceedings. This, however, leads us to the last contention putforth by learned counsel for the petitioner Bank that having quashed the order of punishment on the ground that the inquiry got vitiates from the stage of appointment of inquiry officer plausible it was for the Tribunal to have remitted the matter for further inquiry from the stage of appointment of new inquiry officer. There is considerable force in the submission.
20. In Board of Management of S.V.T. Educational Institution and another v. A. Raghupathy Bhat and others (AIR 1997 SC 1898), it is held that “employer has power to conduct enquiry afresh from the W.P. No. 14833/2011 7 W.P.No. 18758/2011 stage at which the illegality in the proceedings is found vitiating the action.
21. In view whereof the impugned order is modified to the extent that the consequence of setting aside the order of termination further inquiry is to be undertaken from the stage of appointment of a new inquiry officer. Pending inquiry the petitioner employer would be at liberty to invoke clause 58 of the Rules, 1993 as to status of respondent employee during the inquiry. Let the inquiry as directed be completed within a period of three months from the date of communication of this order.
22. Petition is partly allowed to the extent above. (AJIT SINGH ) (SANJAY YADAV) JUDGE JUDGE VT/