Smt. Rashmoni Hela vs State Bank Of India & Ors
2021 Latest Caselaw 391 Cal

 21.01.2021.
Item nos. 40.
Court No. 13
   ap
                            W.P.A. No. 10441 of 2020

                                Smt. Rashmoni Hela
                                     Versus
                              State Bank of India & Ors.


                  Mr. Samrat Sen, ld. Sr. Advocate,
                  Mr. Chiranjib Sinha,
                  Mr. Dyutiman Banerjee.
                                               ...For the petitioner.
                  Mr. S. Pal,
                  Mr. S. Pal Choudhuri.
                                            ..For the respondents.

The writ petitioner is a Group "C" employee of

the State Bank of India and is governed by the

Bipartite Settlement dated April 10, 2002.

The petitioner is aggrieved by an order dated 7th

November, 2020 issued by the disciplinary authority

ordering de novo enquiry.

The brief facts of the case are that by a letter

dated 7th April, 2020, the petitioner was suspended

from service and a charge-sheet was issued to her. An

enquiry officer was appointed and the said enquiry

officer after receiving some evidence both oral and

documentary submitted an enquiry report.

Counsel for the petitioner submits that the

enquiry report was not received by his client and she

was in the dark as to the fate of the disciplinary

proceeding against her until she received the

impugned order.

Learned Senior Counsel for the petitioner, Mr.

Samrat Sen, would argue before this Court that the

terms of the Bipartite Settlement did not provide for

any de novo enquiry. He would submit that the

disciplinary authority acted in excess of jurisdiction by

seeking to go outside the findings of the enquiry officer

and calling for further evidence to be recorded. He

further submits that there is also violation of the

principles of natural justice, inasmuch as, he was not

heard before the last order was passed.

In support of the twofold grounds taken,

Counsel for the petitioner relies upon three decisions.

Firstly that of a Single Bench of this Court in the case

of Sanjib K. Sen - Vs. - Director (Admn),

Government of India, Department of Supply

Directorate General of Supplies and Disposals

(Vigilance Dept.) reported in 1974 (2) Service Law

Reporter 478. He relies upon paragraph 5 in which

the Court held that a second enquiry at the instance of

the delinquent employee should not be permitted. The

next decision relied upon by Mr. Sen in the case of

Calcutta Municipal Corporation & Ors. - Vs. - S.

Wajid Ali & Ors. reported in 1992 (2) CLJ 232. He

relies upon paragraphs 9 and 10 of the said decision

where it was held that the relevant Rules of the

Calcutta Municipal Corporation did not permit holding

of a fresh or further or de novo enquiry once a charged

employee has been exonerated by the enquiry officer.

Mr. Sen, in all fairness, has also placed the

decision of the Hon'ble Supreme Court in the case of

K.R. Deb - Vs. - The Collector of Central Excise,

Shillong reported in AIR 1971 SC 1447.

In the said case, however, the CCS(CCA) Rules of

1957 particularly paragraph 15 was examined and it

was found that the said Rules do not bar a second

enquiry or a further enquiry if the disciplinary

authority found that there were some defects in the

enquiry. Paragraph 13 of the said judgment is relevant

in this context.

The decision of the Division Bench in the case of

Calcutta Municipal Corporation (supra) was rendered

in the context of the Rules of the CMC and were not

relevant in the facts of the case.

The decision in the case of Sanjib Sen (supra)

was a case where the prayer for a second enquiry was

made by the charged employee. The decision is not

relevant here.

This Court does indeed find that Rule 12 of the

Bipartite Settlement appears to be silent on the

question of the power of the disciplinary authority to

remand the matter back for further enquiry or even a

de novo enquiry if the disciplinary authority finds that

there were defects and the procedure adopted by the

enquiry officer.

This Court has carefully heard Mr. Sen as well

as Mr. Pal appearing on behalf of the Bank.

The Law with regard to departmental enquiries

has now been more or less settled by the Hon'ble

Supreme Court of India. From strict compliance of the

principles of natural justice, the Law has traveled and

evolved into the situation where the Hon'ble Supreme

Court has already held that a limited compliance of

the principles of natural justice is sufficient in the

given facts and circumstances of a case. The principal

factors that should weigh before a Court are as to

whether any act or omission in course of enquiry has

prejudiced the charged employee.

This Court has found that the actions of the

disciplinary authority could not by any stretch of

imagination be deemed to have prejudiced the writ

petitioner.

The argument advanced by Mr. Sen amounts to

stating that once an enquiry officer comes to a finding

as regards the absence of proof against an employee,

the same becomes conclusive and sacrosanct and

cannot be reopened and further certain and special

rights accrued to her akin to the principles under the

Evidence Act and the Code of Civil Procedure.

It is now well settled that the strict Rules of the

Evidence Act or much less the Code of Civil Procedure

are not applicable to a departmental enquiry. What is

applied are the concerned Rules and the principles of

natural justice.

One must also consider the facts in hand in the

light of the decision of the Hon'ble Supreme Court of

India in the case of State Bank of Patiala - Vs. -

S.K. Sharma reported in (1996) 3 SCC 364. In the

said decision, the Hon'ble Supreme Court has laid

down in no uncertain terms that non-compliance with

a Rule or any principles of natural justice would ipso

facto not render a quashi judicial proceeding,

particularly the departmental enquiry void or illegal.

The employee concerned is required to demonstrate

what prejudice if at all he has suffered by reason of the

employer's action.

In the instant case, this Court sees no prejudice

whatsoever to the writ petitioner except the delay in

conduct of the enquiry. The petitioner could definitely,

however, argue that she is prejudiced by reason of long

period of suspension.

The order of the disciplinary authority is

modified only to a limited extent that the enquiry shall

be reopened before the enquiry officer permitting the

Bank as well as the writ petitioner to disclose

additional documents and to examine further

witnesses of their respective sides.

The enquiry shall be completed after sufficient

opportunity of examination and cross-examination of

the witnesses by one side of the other.

The enquiry officer shall receive written briefs

from the presenting officer as well as the writ

petitioner and submit enquiry report afresh to the

disciplinary authority.

The entire exercise shall be completed by the

enquiry officer within a period of two months from the

date of communication of a copy of this order. The

disciplinary authority shall thereafter take steps as

prescribed under the Bipartite Settlement.

The evidence already recorded before the enquiry

officer shall remain on record and be considered by the

enquiry officer and Disciplinary Authority along with

the new evidence to be recorded.

Since the exercise as ordered by this Court is

being conducted without any fault on the part of the

writ petitioner, she shall be entitled to full salary and

remuneration from the date on which the enquiry

report was submitted and until final orders are passed

by the disciplinary authority afresh. All arrears in this

regard must be paid to the writ petitioner within seven

days from the date of communication of this order.

It is submitted by the writ petitioner that the

report of the enquiry officer already submitted before

the disciplinary authority has not been received.

Counsel for the Bank shall make available to the

Counsel for the petitioner a copy of the enquiry report

already submitted and interfered with by the

disciplinary authority within a period of seven days

from date.

It is submitted by the Counsel for the Bank that

pursuant to the impugned order dated 7th November,

2020, a further enquiry was held.

Any steps taken post the order dated 7th

November, 2020 shall stand set aside and shall not

form part of the records of the enquiry.

With the aforesaid observations, the instant writ

application shall stand disposed of.

There will be no order as to costs.

All parties are directed to act on a server copy of

this order on usual undertakings.

(Rajasekhar Mantha, J.)