Ashok Mishra vs M.P. State Cooperative Bank ...
2021 Latest Caselaw 3053 MP

                                 -( 1 )-

      THE HIGH COURT OF MADHYA PRADESH, JABALPUR
Misc. Petition No.            : 1579 of 2020
Parties Name                  : Ashok Mishra vs. M.P. State Co-operative
                                Bank Mardt.


Bench Constituted             : Hon'ble Justice Shri Rajendra Kumar
                                (Verma)
Whether approved for          : Yes/No
reporting
Name of counsel for parties   : For Petitioner:
                               Shri Anil Lala, Advocate.
                               For respondent:
                               Shri S.M. Guru, Advocate.




Jabalpur, Dated 07.07.2021.
     This petition under Article 227 of the Constitution of India

has been filed by the petitioner challenging the order dated

09.01.2020     (Annexure      P/3)   passed       by   the   M.P.   State

Cooperative Tribunal, Bhopal (in short 'the Tribunal')in First

Appeal No.148/2016 by which, the order dated 30.06.20216

passed by the Registrar, Cooperative Societies (in short 'the

Registrar') has been set aside.

2.   Facts

necessary for disposal of the present petition in

short are that the petitioner was working on the post of Clerk-

cum-Typist. Departmental proceedings were initiated against

him alleging certain irregularities while he was posted at

Raipur Branch during the year 1995 to 1997. The departmental

-( 2 )-

proceedings were prolonged for several years and finally the

petitioner was held guilty and vide order of dated 15.01.2000

(Annnexure P/1) his services were terminated.

3. The petitioner preferred a service disputed under Section

55(2) of the M.P. Co-operative Societies Act, 1960 (in short 'the

Act') against the order of termination before the competent

authority and the dispute was finally decided vide order dated

30.06.2016 (Annexure P/2), whereby the order of termination

of the petitioner has been set aside and the petitioner was

reinstated with all back wages.

4. The respondent has challenged the aforesaid order before

the Tribunal and the Tribunal vide impugned order has allowed

the appeal and set aside the order passed by the Registrar.

Hence, this petition.

5. Learned counsel for the petitioner has submitted that the

impugned order is arbitrary and illegal. The Tribunal has erred

in not appreciating the material available on record in proper

perspective. The Tribunal has further grossly erred in

appreciating the material omissions and contradictions in the

departmental proceedings conducted against the petitioner,

thus the impugned order deserves to be quashed.

6. Learned counsel for the petitioner has further submitted

that the petitioner had never committed any irregularity as

-( 3 )-

alleged against him and the respondent malafidely victimized

him without any material against him in the departmental

enquiry. The departmental enquiry was kept pending for

several years and the petitioner was victimized by keeping this

dispute pending at the behest of the respondent/authority and

finally the petitioner succeeded and was reinstated in services

with full back wages. As no fault can be found in the order

passed by the Registrar, quashment of such a reasoned order

by the tribunal is arbitrary and illegal.

7. The petitioner is no where responsible for any kind of loan

to any person and, therefore, the allegations levelled against

him were prima facie illegal and, therefore, the impugned

order of quashment of the order of the Registrar mechanically

by the Tribunal is bad in law. The petitioner has been harassed

and victimized in a false case. The petitioner was though

issued a show cause notice on 07.05.1998 but before seeking

any reply from him over the allegations, the Enquiry Officer

was appointed and no document pertaining to the allegations

was ever supplied to the petitioner. Thus, the departmental

enquiry was vitiated from its inception.

8. The petitioner was never engaged himself elsewhere and

fought for his rights for several years and, therefore, he was

rightly found entitled for all back wages and therefore, the

-( 4 )-

finding arrived at by the tribunal is bad in law. It is further

submitted that the respondent was given all opportunities to

defend itself in the dispute preferred by the petitioner and,

therefore, the findings arrived at by the tribunal are bad in law

and deserves to be set aside.

9. Per contra, learned counsel for the respondent has

opposed the submissions made by learned counsel for the

petitioner. It is submitted by him that the order passed by the

tribunal is just and proper and is in exercise of powers vested

in it. The respondent was not given any opportunity to defend

in the dispute preferred by the petitioner and, therefore, the

findings arrived at by the tribunal in this regard are as per law

and thus this petition deserves to be dismissed.

10. Heard learned counsel for the parties at length and

perused the record.

11. From the record, it is clear that the petitioner was working

on the clerk-cum-typist in the M.P. State Cooperative Bank

Mydt. The respondent Bank vide order dated 28.07.1998

suspended the petitioner and initiated departmental inquiry

against him alleging certain financial irregularities while he

was posted at Branch Raipur, Chhatishgarh in the year 1995 to

1997. A show cause notice has been issued to the petitioner

and the petitioner submitted a reply to the same and after

-( 5 )-

considering the reply of the petitioner, the competent

authority issued the order of termination dated 15.01.2000.

The petitioner being aggrieved by the order of termination

approached the Registrar under Section 55 of the Act and the

Registrar relying on the testimony of the petitioner has set

aside the order of termination and reinstated the petitioner in

service with full back wages. The respondent/Bank being

aggrieved by the order, approached the M.P. Cooperative

Tribunal by filing an appeal under Section 77 of the M.P.

Cooperative Societies Act and the tribunal vide impugned

order has set aside the order of the Registrar.

12. The Hon'ble apex Court in the case of State of Mizoram

vs. B.D. Thakur reported in (2003) 12 SCC 268 has held as

under:

"Having heard the learned counsel for the parties and on examining the order of the disciplinary authority which was based upon the findings arrived at by the enquiring officer and on scrutiny of the judgment of the learned single judge we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the finding of guilt arrived at by the disciplinary authority. On the basis of the findings arrived at by the enquiring officer the division bench of the High Court has itself in its order stated that there were ample evidence in support of the conclusion and if the finding is supported by oral evidence the same need not and should not have been interfered with on the ground that the extent has not been examined. So far as the question

-( 6 )-

whether order of termination was passed by the appointing authority or not, the learned single judge himself has reviewed his decision and held that the superintendent of police was the appointing authority and as such was entitled to take the final decision in the disciplinary proceeding. In the aforesaid premise, we set aside the impugned judgment of the division bench and single judge of the High Court of Gauhati and hold that the writ petition would stand dismissed. The appeal of the state is allowed and that of the respondent stands dismissed."

13. The Hon'ble apex Court in the case of Coal India Ltd.

vs. Ananta Saha reported in (2011) 5 SCC 142 while

dealing with issue of 'no work no pay' has held as under:-

"44. In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment of arrears of salary till date. Shri Bandopadhyay, learned senior counsel appearing for the appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of "no work - no pay". The delinquent had been practicing privately i.e. has been gainfully employed, thus, not entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the Service Rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry. It is settled legal proposition that result of the fresh inquiry in such a case relates back to the date of termination.

47. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary.

Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of

-( 7 )-

universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic.

48. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh inquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled for subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs."

14. The Hon'ble apex Court further in the case of Union of

India vs. P. Gunasekaran reported in (2015) 2 SCC 610 has

held as under:

"The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 the Constitution of India. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness,

-( 8 )-

sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."

15. The Hon'ble apex Court in the case of Shashi Bhushan

Prasad vs. CISF, (2019) 7 SCC 797 has held as under:

"It is not the case of the appellant that any error committed in the procedure prescribed under the scheme of Rules 1969 has been violated or opportunity to hearing has not been afforded or the principles of natural justice has been violated, in absence thereof, it is otherwise not open for the Courts to interfere in the disciplinary proceedings under its limited scope of review under Articles 226 & 227 of the Constitution of India."

16. In the case of Smt. Maneka Gandhi vs. Union of India

and another, A.I.R. 1978 Supreme Court 59, the Hon'ble

Supreme Court of India upon consideration of the fact that the

principles of audi alteram partem would have application even

where no positive words are used in the statute, observed as

under :

"Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard is part of the rules of natural justice.

Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?

-( 9 )-

The law must now be taken to be well settled that even in an administrative proceedings, which involves civil consequences, the doctrine of natural justice must be held applicable."

17. From the record, it is clear that the Registrar has

exceeded its jurisdiction and reappreciated the evidence

recorded in the full fledged departmental enquiry conducted

by the respondent/Bank and, therefore, the tribunal has rightly

remanded the matter back to the Registrar to decide the same

after affording opportunity to both the parties.

18. From a perusal of the impugned order, it is reflected that

the respondent/Bank has not given opportunity to produce the

documents. It is also reflected that on 07.06.2016 cross-

examination of the respondent's witnesses has been done in

absence of counsel for the petitioner and the case was fixed

for final arguments 13.06.2016. It is also reflected that an

application under Section 151 of C.P.C. for exhibiting the

documents before final arguments has been rejected. It is also

reflected from the record that in 2002 certain documents were

admitted in plaintiff's evidence though that documents were

not exhibited and the tribunal found that before final

arguments documents admitted in plaintiff's evidence must be

examined and proved by the witnesses. The tribunal has also

opined that all findings arrived at by the Registrar are based

-( 10 )-

on only the petitioner's evidence and the employer was not

given sufficient opportunity to defend. The Registrar has not

properly scrutinized the evidence given in departmental

enquiry and only on the basis of the petitioner's evidence, the

findings have been arrived at by the Registrar.

19. The tribunal has also found that before deciding issue

Nos. 02, 03 & 04, the Registrar ought to have examined the

report of the departmental enquiry and, therefore, the order

passed by the Registrar without examination of the report is

contrary to law and rightly quashed by the Tribunal and

remanded the matter back to the Registrar for deciding it

afresh.

20. In view of above, I am of the opinion that no error has

been committed by the tribunal in passing the impugned order.

Even otherwise this petition is under Article 227 of the

Constitution, where the scope of interference is very limited.

The Supreme Court in the matter of Jai Singh and others Vs.

Municipal Corporation of Delhi and Another reported in

2010(9) SCC 385 while considering the scope of interference

under Article 227 of the Constitution, has held that the

jurisdiction under Article 227 cannot be exercised to correct all

errors of judgment of a court, or tribunal acting within the

limits of its jurisdiction. Correctional jurisdiction can be

-( 11 )-

exercised in cases where orders have been passed in grave

dereliction of duty or in flagrant abuse of fundamental

principles of law or justice.

21. Having regard to the aforesaid, I am of the opinion that

no case for interference in the impugned order is warranted.

Consequently, the petition filed by the petitioner is hereby

dismissed. However, it is observed that the Registrar shall

expedite the matter and decide the same as early as possible

preferably within a period of four months from the date of

receipt of a certified copy of this order. No order as to costs.

(Rajendra Kumar (Verma)) Judge

SJ

SUSHEEL KUMAR JHARIYA 2021.07.08 17:06:22 +05'30'