Allowed

Kumar Somesh v. the State of Jharkhand and Ors.

Jharkhand HC11 Mar 2024WPC/4248/2015

Case brief

AI extract

What is this about?

Disciplinary authority imposed monetary recovery on a cooperative bank employee despite an enquiry report exonerating him of embezzlement, without a second show-cause notice or reasons for disagreement. The High Court quashed the punishment order and enquiry recommendation, and directed payment of subsistence allowance to the employee's legal heirs.

What did the court decide?

Impugned punishment order dated 31.12.2008 quashed; respondents to consider legal heirs' claim for emoluments within eight weeks and pay unpaid subsistence allowance within eight weeks.

Kumar Somesh Vs the State of Jharkhand and Ors. — Service and Employment | Jharkhand HC (2024)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶2

W.P.(S) No. 4248 of 2015

¶3

Kumar Somesh

¶4

Mukta Singh [The writ petitioners are respectively son and daughter of the original writ petitioner Achyutanand Singh, who died on 24.07.2018 and substituted vide order dated 03.08.2023 passed in I.A. No. 4188 of 2023]

¶5

… … … Petitioners

¶6

Versus

¶7

The State of Jharkhand

¶8

The Deputy Commissioner – cum – Liquidator, The Daltonganj Central Cooperative Bank Limited, Daltanganj.

¶9

The Registrar, Cooperative Societies, Jharkhand, Ranchi

¶10

District Cooperative Officer – cum – Managing Director, The Daltanganj Central Cooperative Bank Limited, Daltanganj.

¶11

… … Respondents

¶12

CORAM: HON'BLE DR. JUSTICE S. N. PATHAK

¶13

For the Petitioner Md. Imtiaz Khan, Advocate For the Cooperative Bank:Mr. Mrinal Kanti Roy, Advocate For the State Mr. K.K. Singh, SC-V

¶14

14/11.03.2024 Heard the parties.

¶15

Petitioner has assailed the order issued vide memo no. 42, dated 31.12.2008 whereby petitioner was awarded punishment of recovery from his dues salary amounting to Rs.1,71,696/- with a rider that during the period of suspension, no salary etc. will be paid to him except the subsistence allowance. Petitioner has further prayed for a direction upon the respondents, particularly respondent nos. 3 and 4, to pay salary for the suspension period in view of notification dated 06.07.1981.

¶16

It appears that during pendency of the writ petition, original writ petitioner namely Achyutanand Singh died on 24.07.2018 leaving behind his legal heirs namely Kumar Somesh (son) and Mukta Singh (daughter) who have substituted the original writ petitioner, vide order dated 03.08.2023 passed in I.A. No. 4188 of 2023.

¶17

The original writ petitioner was appointed in Daltanganj Central Cooperative Bank Limited, Palamau against sanctioned and vacant post after following all the procedures. However, on the basis

¶18

¶19

¶20

of complaint, original writ petitioner was put under suspension by issuance of an order by the District Cooperative Officer – cum – managing Director to the Central Cooperative Bank Limited, vide memo no. 664, dated 15.09.1995 in contemplation of the departmental proceeding against him. Thereafter, departmental proceeding was initiated against him by serving charge sheet vide memo no. 771, dated 16.12.1996 on the allegation of committing irregularity in Mini Saving Account and accordingly, he was asked to submit his explanation within two weeks. In the meantime, Daltanganj Central Cooperative Bank Limited had been liquidated under the order of respondent no. 3 and the respondent no. 2, being the Managing Director and Deputy Commissioner, had become liquidator. All the employees of the Bank were adjusted by the State Government upon decision taken by the Committee vide memo no. 354, dated 03.03.2006. Though all the employees were adjusted in different Cooperative Bank of the State, but surprisingly the original writ petitioner here was not adjusted anywhere. Though a resolution had been taken by the State Government with regards to continuation of suspension vide Notification dated 06.07.1981, in which resolution had been taken for revocation of suspension order soon after two years, if no criminal or departmental proceeding is pending, but no action was taken in case of the original writ petitioner here. Being aggrieved, the original writ petitioner here filed representation for revocation of suspension order and to pay all admissible dues including subsistence allowance but no action was taken. Being aggrieved, he preferred writ petition vide W.P.(S) No. 6182 of 2006 before this Court. However, during pendency of said writ petition, pursuant to Memo no. 42, dated 31.12.2008, punishment order was passed without issuance of second show-cause notice and was served the same to the petitioner by filing counter affidavit in the said writ petition. Thereafter, the said writ petition was withdrawn by him vide order dated 08.07.2015. Thereafter, the original writ petition filed his explanation before the conducting officer denying the charges levelled against him and accordingly, requested the authority to exonerate him from the charges since he had not committed any

¶21

¶22

¶23

misconduct. The enquiry officer, after conducting regular departmental proceeding against the petitioner, had held the petitioner to be not guilty of any of the charges and submitted the enquiry report to the Deputy Commissioner – cum – Liquidator. On the same set of fact, two employees namely Anil Kumar Singh and Vinay Kumar and agent of Mini Saving Account who were also involved but respondents had not initiated any proceeding nor any criminal case was lodged rather order had been passed for recovery of loan amount against said employees. The disciplinary authority, without assigning any reason, differed with the finding of the enquiry officer, issued order vide memo no. 42, dated 31.12.2008, awarding punishment of recovery of Rs.1,71,696/- from the dues salary with a further rider that he will be entitled for subsistence allowance only during the period of suspension. Being aggrieved, the petitioner has knocked door of this Court.

¶24

Mr. Md. Imtiaz Khan, learned counsel representing petitioners, assailing the impugned order draws attention of this Court towards the enquiry report and submits that from the said enquiry report, it appears that the original writ petitioner had not been held guilty of charges. The enquiry officer, while concluding enquiry, had reported and recommended that the original writ petitioner had been held partially guilty of charges and that too of dereliction of duty and not of embezzlement. Learned counsel further submits that in view of specific observations and recommendations of the enquiry officer, it was not open for the respondents – disciplinary authority to inflict order of punishment for recovery of huge amount of Rs.1,71,696/-. Learned counsel submits that though the Bank is facing liquidation but since the original petitioner has already died and after substitution, his son and daughter have approached this Court, the financial situation of the family is not worth for pursuing the matter before the Court and the family is facing financial crunch, they should be compensated after quashment of the order. Learned counsel further argues that on the same set of fact two employees namely Anil Kumar Singh and Vinay Kumar and agent of Mini Saving Account who were also involved but respondents had not initiated any

¶25

¶26

¶27

proceeding nor any criminal case was lodged against them rather order had been passed for recovery of loan amount against those persons. Though the original writ petitioner is no more, but this is a good case which warrants interference of this Court.

¶28

Mr. Mrinal Kanti Roy, learned counsel representing Bank submits that though the deceased-petitioner had not been held guilty of the charges but partially he had been held guilty and as such, rightly it has been recommended by the enquiry officer to recover half of the amount from i.e. Rs. 91,524/-. It has further been argued that the impugned order is fully justified and also, in view of the fact that the Bank is in the process of liquidation, any consideration can be shown after the said process is over.

¶29

Heard the parties at length. Admittedly, the deceased-petitioner had not been held guilty of charges. The guilt has been said to be partially proved only on the ground of dereliction of duty. The embezzlement has not been proved and as such the enquiry officer has opined that the deceased-petitioner cannot be held guilty of embezzlement. The disciplinary authority, without considering the enquiry report and without assigning any reason for differing with the enquiry report, has inflicted the punishment of recovery of entire amount of Rs.1,71,696.00.

¶30

The legal proposition, as laid down by the Hon’ble Apex Court is very clear on the point of disciplinary authority. Before differing with the finding of the enquiry authority, the disciplinary authority has to assign cogent reasons and before that, notice has to be issued to the employee as to why major punishment should not be imposed. In absence of show-cause notice and in absence of cogent reasons, the impugned order is fit to be set aside. In the instant case, the deceased-petitioner was exonerated by the inquiry officer. There was no occasion to proceed afresh without assigning any reason, and to pass punishment order without providing opportunity of being heard to the petitioner.

¶31

The Hon’ble Apex Court in case of Managing Director, ECIL & Ors. v. B. Karunakar & Ors., reported in (1993) 4 SCC 727 has held that :

¶32

¶33

¶34

“ 26. The reason why the right to receive the report of the inquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the inquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the inquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the inquiry officer along with the evidence on record. In the circumstances, the findings of the inquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the inquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the inquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the inquiry officer’s findings. The disciplinary authority is then required to consider

¶35

¶36

¶37

the evidence, the report of the inquiry officer and the representation of the employee against it.”

¶38

Further in case of Ram Kishan v. Union of India, reported in (1995) 6 SCC 157 , the Hon’ble Apex Court has held as under :

¶39

“ 10. …………. The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect.”

¶40

The same view has been reiterated by the Hon’ble Apex Court in case of Punjab National Bank & Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84, relevant paras of which is reproduced herein below:

¶41

“17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has

¶42

¶43

¶44

recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.

¶45

19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”

¶46

While dealing with similar matter in the case of Madhurendra Kumar Singh Vs. State of Jharkhand and others in W.P.(S) No. 2053 of 2018 reported in 2019 SCC OnLine Jhar 2964, this Court has clearly observed that there was no occasion for conducting a de novo and second inquiry as without assigning any reason for deferring with the first inquiry report, the disciplinary authority had ordered for second inquiry, which is impermissible in the eyes of law as after deferring with the inquiry report and following the principles

¶47

¶48

¶49

of natural justice, a further inquiry could have been initiated rather than a fresh inquiry. In the instant case, there has been complete violation of principles of audi alteram partem .

¶50

The Hon’ble Patna High Court in the case of Krishna Kanhaiya Prasad Singh Vs. State of Bihar, reported in 2014(4) P- LJR 576, was of the view that even for imposing minor punishment, if procedure for imposing major punishment is followed, then it has to be followed in its entirety, and violation of such procedure cannot be defended by claiming that because the punishment was minor, therefore violation of such procedure will not vitiate minor punishment. The same has not been done in the instant case. The impugned orders are bereft of any finding by the disciplinary authority. In absence of any reasons, the order in complete violation of the Rule. The petitioner cannot be held guilty of the allegations, which, in turn, vitiates the impugned order of punishment as being a non-speaking and non-reasoned order and the same is in complete violation of principles of natural justice.

¶51

It is settled legal propositions that issuance of 2^nd show-cause notice along with copy of inquiry report is sine qua non and inflicting the punishment without seeking reply by way of 2^nd show-cause notice is not tenable in the eyes of law.

¶52

The learned counsel for the respondent points out that the enquiry officer had not recommended rather it is the punishment order passed by the Court of Joint Registrar of Cooperative Societies and the enquiry officer has simply quoted the same. It cannot be said to be recommendation. The said argument of learned counsel for the respondents is not acceptable to this Court. The enquiry officer has recommended that in view of order passed by the Joint Registrar of the Court, petitioner is held liable for recovery of half of the amount. This recommendation of the enquiry officer is nullity in the eyes of law. He is not empowered to do so. The role of enquiry officer has been duly discussed and it has clearly been observed that the enquiry officer cannot pass order recommending punishment. He has to confine himself whether charges have been proved or not. In the instant case, the enquiry officer has exceeded his jurisdiction.

¶53

¶54

¶55

It has also been argued by learned counsel for the respondents that the Bank is facing liquidation and it is under the process of liquidation. The process of liquidation is not yet complete. In view of legal proposition and in view of observation of this Court, the impugned order is not tenable in the eyes of law and fit to be quashed and set aside.

¶56

In view of facts and circumstances discussed hereinabove, the impugned order issued vide memo no. 42, dated 31.12.2008 as well as the observation made in the enquiry report are hereby quashed and set aside to the extent of recommendation regarding recovery of half of the amount. Since the impugned order is quashed and set aside, the legal heir of the original writ petitioner is at liberty to approach before the respondents for consideration of their case for releasing the other emoluments for which deceased-original writ petitioner was entitled for, in accordance with law, in view of quashment of the impugned order. Needless to say, if legal heirs of the deceasedpetitioner approach the respondents for redressal of the grievances, the same shall be considered in accordance with law and reasoned order shall be passed by the respondents within a period of eight weeks thereafter.

¶57

Later on, it has also been brought to the notice of this Court that the respondents have not even paid subsistence allowance to the deceased-original writ petitioner till date. On that score itself, the entire disciplinary proceeding has no legs to stand. When an employee is suspended and proceeding has been initiated against him, he is fully entitled for subsistence allowance. However, if the same has not been paid to the deceased-original writ petitioner, the same is directed to be paid to the legal heirs of the deceased-original writ petitioner, within a period of eight weeks from the date of receipt/ production of a copy of this order.

¶58

With the aforementioned observations and directions, the writ petition stands allowed.

¶59

( Dr. S.N. Pathak, J. )

¶60

¶61

Kumar Somesh v. the State of Jharkhand and Ors.

Case brief

What is this about?

What did the court decide?

Kumar Somesh v. the State of Jharkhand and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Mohammad Shahid Vs the State of Jharkhand and Ors.

Chandra Kant Rai Vs Jharkhand State Electricity Bo

Santosh Kumar Vs Welfare

Pappu Kumar Vs the State of Jharkhand

Pradeep Kumar Singh Vs the State of Jharkhand

Rajiv Kumar Jaiswal Vs State of Jharkhand And Ors.