1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3983 of 2008 Banshi Raut, son of Sri Nepal Raut, resident of Village-Lilafari, P.O. Lilafari, P.s. Jama, District-Dumka ….. ….. Petitioner Versus 1. The State of Jharkhand through Secretary, Cooperative Department, Government of Jharkhand, Ranchi.
2. Managing Director, Dumka Central Cooperative Bank Limited, Dumka.
3. Branch Manager, Dumka Central Cooperative Bank Limited, Sahebganj. ….. …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondents : Mr. Binod Singh, S.C.(L & C) & Ms. Suchitra Pandey, Adv. ----------- th 6/Dated:04 February, 2016 Per Pramath Patnaik, J.:
1. In the accompanied writ application, the petitioner has inter alia prayed for quashing the order dated 04.05.2007 as contained in memo no.38 issued under the signature of respondent no.2 pertaining to removal from services and the petitioner has further prayed for direction upon the respondents to reinstate him in services forthwith with all consequential benefits.
2. The factual matrix, as has been delineated in the writ application, in a nutshell, is that the petitioner joined in services under the Dumka Central Cooperative Bank vide order dated 10.06.1981 and after joining the said services, vide order dated 02.01.1984 the petitioner was getting regular pay scale. In the year 1999 also the regular time bound promotion has been given to the petitioner with effect from 01.10.1994. From the date of appointment the petitioner has been discharging his duties to the utmost satisfaction of his authorities without any complaints whatsoever. Due to ailment, the petitioner remained on leave and for which he was placed under suspension in the year 2005 as evident from Annexure-1 to the writ application. The petitioner has been removed from services vide order dated 04.05.2007 issued under the signature of the Managing Director on the ground of unauthorized absence as evident from Annexure-2 to the writ application. 2 Being aggrieved by the impugned order of removal from services, left with no alternative, efficacious and speedy remedy, the petitioner has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance.
3. Heard Mr. Saurabh Shekhar, learned counsel appearing for the petitioner as well as learned counsel appearing for the respondents.
4. Learned counsel for the petitioner with vehemence has argued that the impugned order of punishment vide Annexure-2 dated 04.05.2007 has been passed in derogation of the Bihar Central Cooperative Bank Rule. Learned counsel for the petitioner submits that as per the said rule there is a procedure for imposing major punishment which inter-alia envisages as follows: “V. Procedure for imposing Major Punishment: The followings procedure shall be followed or caused to be followed by the disciplinary authority before imposing any of the major penalties on an employee: (i) The employee concerned shall be communicated in writing the charge or charges. The statement of allegation on each charge is based and of any other circumstances which are proposed to be considered while passing orders on the case. The person charged shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral enquiry or to be heard in person or both. The authority imposing any of the punishment may itself enquire into or if necessary may appoint an ‘Enquiry Officer’ for the purpose, who should be superior in rank to the concerned employee. If need be, the competent authority may form a Committee of Technical or Accounts Experts to assess the loss or extent of violation of rules and procedures and to assist the enquiry officer to judge the extent of damage or loss and to base his charge. Such assessment will form part of the Enquiry Report. (ii) After the enquiry or personal hearing referred to in sub-clause (i) above has been completed and after the disciplinary authority has arrived at provisional conclusion in regard to the penalty to be imposed, the person charged shall be supplied with a copy of the report referred to in that clause and be called upon o show cause, within a reasonable time, against the penalty proposed. Any representation in this behalf submitted by the persons charged shall be taken into consideration before final orders are passed, provided that such 3 representation shall be based only on the evidence adduced during the enquiry.”
5. Learned counsel for the petitioner submits that as per Rule 21 and 23, the punishment mentioned under Clause IX for removal from services is admittedly a major punishment, so the procedure as envisaged under the relevant rules has not been followed. On that score, the impugned order of punishment is not sustainable in the eye of law. Learned counsel further submits that whether the alleged unauthorized absence from duty was wilful or not that determination ought to have been made by the respondents prior to infliction of major punishment. So, the sole contention of the petitioner is that the relevant rules for major punishment has not been followed which is rendering the impugned order nugatory, thereby being violative of Article 14 and 16 and 300A of the Constitution of India.
6. During course of argument, learned counsel for the petitioner has referred to the decision of the Hon’ble Apex Court reported in (1998) 8 SCC1( Whrirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors.) wherein their Lordships, at paragraph 15, has been pleased to hold:
“15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction ……”
7. As against the submission of learned counsel for the petitioner, learned counsel for the respondents-Bank has referred to the counter affidavit, wherein it has been stated that the writ petition is not maintainable because the petitioner has not availed the alternative remedy of appeal under the relevant Rule 24. Learned counsel for the respondents-Bank also submits that the petitioner was a habitual offender and in the habit of remaining absent for the long period, for which he was placed under suspension vide order dated 10.12.2005. Learned counsel for the respondents further submits 4 that on compassionate ground he was taken into service with warning for his misconduct not to abstain from duty in future and the principles of natural justice has been followed by giving show cause to the petitioner prior to removal from services.
8. After hearing learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference on the following grounds: (I) In the instant case, the petitioner being aggrieved by the impugned order of removal from services dated 04.05.2007 vide Annexure-2 to the writ application, wherein major punishment has been inflicted to the petitioner without resorting to the relevant provisions of the aforesaid rules i.e. Procedure for imposition of Major Punishment and on that score the impugned order of punishment is not legally sustainable. (II) Admittedly, the petitioner is a regular employee having been appointed since 1981 and prior to removal from services he had rendered almost 26 of service from the date of joining till the date of removal from services. During his continuance in service, he has been paid regular scale of pay and time bound promotion has been given to him. If there had any misconduct committed by the petitioner i.e. relating to unauthorized absence, the respondent-Bank would have resorted to proper procedure, prior to the imposition of punishment. Therefore, action of respondents in passing the impugned order of punishment is amenable to judicial scrutiny.
9. In view of the aforesaid facts and as a logical sequitur to the foregoing paragraphs, the impugned order of punishment dated 04.05.2007 vide Annexure-2 being not legally sustainable, is quashed, and the respondents are directed to reinstate the petitioner in services forthwith. However, liberty is reserved to the respondents to initiate a de novo proceeding against the petitioner, if so legally advised, in accordance with law and relevant service rules after affording reasonable opportunity and complying the principles of natural justice.
10. With the aforesaid direction, the writ petition stands, disposed of. (Pramath Patnaik, J.) Saket/-