Madras High Court
Harjinder Singh vs National Bank For Agriculture And ... on 31 July, 2023
2023:MHC:3573
W.P.No.17266 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.07.2023
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.No.17266 of 2017
and W.M.P.Nos.18764 of 2017, 21502 of 2019 & 27163 of 2021
Harjinder Singh .. Petitioner
vs
1.National Bank for Agriculture and Rural Development
Rep. By its Chairman,
C-24, G Block, Bandra Kurla Complex,
Post Box No.8121,
Bandra (E), Mumbai – 400 051.
2.Chief General Manager,
NABARD, Regional Office.
3.Deputy General Manager
NABARD Regional Office
Respondents 2 & 3 at
No.48, Mahatma Gandhi Road,
Nungambakkam, Chennai – 600 034 .. Respondents
Petition filed under Article 226 of the Constitution of India
praying to issue a writ of certiorari after calling for the records
relating to second charge sheet bearing
Ref.No.N.B.T.N.HRMD/666/PA-DISC/2016-17 dated 23.12.2016
issued by the 2nd respondent Disciplinary Authority to the
petitioner and to quash the same.
https://www.mhc.tn.gov.in/judis
1/40
W.P.No.17266 of 2017
For Petitioner : Mr.Balan Haridass
for Mr.R.R.Pradheep
For Respondents : Mr.Vijay Narayan,
Senior Counsel
for Mr.T.Poornam
ORDER
Writ petition has been filed in the nature of a certiorari
seeking the records relating to the second charge sheet bearing
Ref.No.N.B.T.N.HRMD/666/PA-DISC/2016-17 dated 23.12.2016
issued by the second respondent, Chief General Manager, NABARD,
Regional Office at Chennai / Disciplinary Authority and quash the
same.
2. The writ petitioner was appointed as Clerk Grade II by
the respondent bank on 16.04.1984. He was posted to the Regional
Office at Chandigarh. He was then promoted on 01.07.1994 as
Assistant Manager and posted at Regional Office, Jammu. He was
further promoted as Manager in May, 2003 and posted at Regional
Office, Chandigarh. He was then transferred and posted at
Regional Office, Chennai on 04.07.2016.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
3. During his service at Chandigarh, the petitioner was
also Honorary Member of NABARD Employees Cooperative Urban
Salary Earners Thrift and Credit Society Limited, Chandigarh
(hereinafter referred to as 'NABARD Employees Cooperative
Society'). He was also elected Member of the Managing Committee
of the Society between February, 1999 and January, 2002. He
acted as President of the Managing Committee from January 2002
and resigned in May 2003.
4. He had a very interesting tenure while serving in the
aforesaid positions in the NABARD Employees Cooperative Society.
On 25.04.2007, he was issued with a charge memo which can be
called the first charge memo complaining that he had violated Rule
28 of NABARD Staff Rules, 1982. It was alleged that he had failed
to promote the bank's interest and brought disrepute to the
organization.
5. The said charge memo was issued under Rule 47 of the
Rules. He was placed under suspension on 13.12.2005. The
suspension was revoked in November, 2006. He stated that an
enquiry was held in October, 2007. He was dismissed from service
along with five other staff members. He then preferred an appeal
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
before the appellate authority, which was dismissed in August,
2009.
6. He then filed a Civil Writ Petition / CWP No.12241 of
2015 (O&M) before the High Court of Punjab and Haryana at
Chandigarh. The petition was allowed and the orders of the
disciplinary authority and also of the appellate authority were set
aside. It was directed that he should be reinstated into service and
that arrears of salary and allowances should be paid till the date of
reinstatement, however, restricting it to 38 months prior to the
filing of the writ petition.
7. He then assumed duties at Regional Office, Chennai
wherein, he was issued with the charge memo which is impugned
in the writ petition and which could be termed as the second
charge memo. It is complained by the petitioner that the charge
memo is a repetition of the one which went through its process
whereby he was dismissed from service till it was finally interfered
with by the High Court of Punjab & Haryana.
8. It is also complained that the second charge memo was
issued on the very same set of facts, which were alleged in the
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
first charge-sheet. It is also stated that the respondents have no
jurisdiction or authority to issue any charge memo at all either the
first or the second. It was also stated that the earlier charges could
not be resurrected again. It was complained that there was
violation of the fundamental principle which stipulates that no
person should be charged with the same offence for a second time.
9. The petitioner issued a letter complaining about the
issuance of such second charge-sheet on 30.05.2017. But since
there was no reply, and since the enquiry officer came to be
appointed and enquiry date was also determined, the writ petition
had been filed.
10. It must be stated that pending the writ petition, the
learned Single Judge, who had examined the issues before, had
directed that the enquiry could proceed but final orders should not
be passed.
11. I am informed that the enquiry had proceeded, and had
also been completed. On being so informed, the respondents were
permitted to provide a copy of the enquiry report to the petitioner
herein. The matter is at that stage.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
12. A counter affidavit had been filed on behalf of the
respondents wherein, they had stated that the petitioner had taken
recourse to filing an appeal as an alternate remedy and also
parallely, he had also invoked the writ jurisdiction under Article
226 of the Constitution of India. It was also stated that the
petitioner had participated in the enquiry proceedings, which had
attained finality and a report had also been prepared. As stated, a
copy of the report has also been furnished to the petitioner.
13. With respect to the right of the respondents to proceed
against the petitioner herein questioning his acts which he had
committed / acts of omission or commission, while functioning as
office bearer of the NABARD Employees Cooperative Society, the
respondents stated that the Society was an off shoot of the bank.
The members were the employees of the bank and no third person
could be a member of the society. The object of the society was to
lend money to its members, who are again the respondent's
employees. It was stated that, therefore, the activities of the
society are intricately connected with the bank and the bank has a
supervisory control over the society and has its interests to be
protected if any office bearer of the society is found or is alleged to
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
have misappropriated money, which is the crux of the charge
against the petitioner herein along with other charges.
14. It is also complained that these acts of the petitioner
and others brought disrepute to the respondents and to protect
their image, they necessarily had to initiate disciplinary
proceedings. It was contended that therefore, the respondents
have every right to issue the charge memo against the petitioner
herein and seek explanations to be given by him.
15. The other ground which had been raised by the
petitioner herein was that quite apart from him, there were several
others who had also been similarly issued with the charge memo
and a few of them had knocked the doors of the Hon'ble Supreme
Court. Reliance is placed on one of the orders of the Hon'ble
Supreme Court in the case of Arvind Singh Arora v The National
Bank for Agriculture & Rural Development and others
[C.A.No.10808 of 2014 dated 05.12.2014].
16. In that case, the Hon'ble Supreme Court had examined
the procedure which had been adopted during the enquiry and
found that the principles of natural justice had not been adhered to
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
and had taken a decision to quash the disciplinary proceedings.
They set aside the order of dismissal and also the order of the
appeal filed by that particular appellant. The civil appeal was
allowed by the Hon'ble Supreme Court. It was held that the
appellant therein would be entitled to all consequential benefits.
17. It must also be mentioned that this particular order of
the Hon'ble Supreme Court was relied on by the petitioner when he
filed his writ petition aforementioned, namely, CWP No. 11202 of
2010 (O&M) before the Punjab and Haryana High Court. The order
of the Hon'ble Supreme Court granted relief to other employees
also. These facts were taken note of by the Punjab and Haryana
High Court and they also followed suit by setting aside the
departmental proceedings against the petitioner and directing
reinstatement with a small caveat that since the petitioner had
approached the High Court a little late, giving him the benefits
only for 38 months prior to the date of order and not earlier.
18. These two orders put an end to the first round of the
proceedings against the petitioner. The respondents, however,
justified issuing a second charge memo by stating that the Hon'ble
Supreme Court and the High Court of Punjab and Haryana had not
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
examined the issues on merits but had rather only examined
whether appropriate procedure had been followed during the said
departmental proceedings. It had therefore been stated that it was
well within the right of the respondents to re-open the issue for
better adjudication and to provide necessary opportunities. In
effect, they claimed a right to issue a second charge memo even
though it may be on the very same grounds, by stating that there
was an obligation on the part of the respondents to examine
whether the charges laid against the petitioner herein, stood
established or not. This was also to protect their reputation. They
therefore claimed that there was no procedural irregularity, as
alleged by the petitioner in issuing a second charge memo.
19. It is also however contended on behalf of the petitioner
herein that the officer, who actually issued the second charge
memo was not competent to so issue the charge memo. In this
connection, reliance was placed on the proceedings of the
Chairman of the respondent, who in the first instance, had
appointed, the Chief General Manager at Headquarters to issue the
charge memo, but which was curtailed half way through by the
orders of Hon'ble Supreme Court and Punjab and Haryana High
Court.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
20. It is complained by the petitioner that in the second
instance, namely, the second charge memo, which is now
impugned in the present writ petition, that had been issued by the
Chief General Manager, Regional Office at Chennai. Competency of
the said officer to so issue the charge memo has also been
seriously put to test and questioned by the petitioner. Arguments
on these lines were advanced by learned counsel. It is, therefore,
contended that this Court should interfere with the proceedings.
21. The respondents on the other hand contended that the
Chairman had a discretion to appoint the enquiry officer and it is
not necessary that it is only the Chief General Manager at
Headquarters who alone should be so appointed. Reliance is placed
on the word 'may' which provided some leverage for the Chairman
to appoint any officer superior to that of the delinquent and in this
case, therefore had appointed the Chief General Manager, Regional
Office at Chennai to issue the impugned charge memo. It was also
pointed out that, at the relevant point of time, the petitioner was
employed at Chennai and, therefore, it would only be convenient to
him to answer the charges and participate in the enquiry.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
22. Detailed arguments had been advanced by Mr.Balan
Haridass, learned counsel appearing on behalf of the petitioner and
Mr.Vijay Narayan, learned Senior Counsel appearing on behalf of
the respondents.
23. Mr.Balan Haridass, learned counsel for the petitioner,
took the Court through the sequence of events, particularly the
issuance of the first charge memo, the disciplinary proceedings
initiated thereunder and the complaint given by one of the
members, who was similarly charge sheeted / delinquent officer,
and who had finally approached the Hon'ble Supreme Court where,
serious flaws were found out in the procedure adopted. It was
stated that documents were produced and marked without prior
notice. It was also complained that witnesses were examined,
without proper notice being given in advance about the statements
or the nature of the evidence to be let in. The Hon'ble Supreme
Court, for all these reasons, had set aside that particular
departmental proceeding.
24. It is the main contention of the learned counsel for the
petitioner that no leave was granted by the Hon'ble Supreme Court
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
to re-commence the disciplinary proceedings. It was contended
that the Hon'ble Supreme Court had put an end to the disciplinary
proceedings and, therefore, it is contended that without such leave
or permission being granted, issuance of the second charge memo
was violative of the rights of the petitioner herein as he stood
charged for the same set of facts, a second time.
25. That the first and second charge memos were on the
same line of facts, is neither denied nor disputed. They were also
substantially on the same aspects. It was also contended by
learned counsel for the petitioner that the second charge memo
suffered from a basic flaw of being issued without any authority or
without any leave being granted when the proceedings pursuant to
the first charge memo had been set aside by the Hon'ble Supreme
Court and also by the High Court of Punjab and Haryana, in the
specific case of the petitioner herein.
26. Learned counsel for the petitioner also raised issues
over the competency of the officer who had issued the second
charge memo. Learned counsel pointed out that the charges
proceeded on the basis that the petitioner had brought about
disrepute to the bank. He questioned the authority of the
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
respondents to issue such a charge memo. He contended that the
cooperative society was an independent society. The bank is also
an independent entity. It is therefore contended that the
respondents had overreached themselves by issuing not only the
first charge memo but also the second charge memo.
27. Mr.Vijay Narayan, learned Senior Counsel appearing for
the respondents, however contended that any public servant or
any officer of a bank or of any other organization, if he conducts
misconduct outside the duties assigned to him, he could still be
proceeded against for such misconduct. It is contended by learned
the Senior Counsel that in this particular case, the affairs of the
society had invited negative media publicity and to protect the
reputation and the name of the respondents, since the petitioner
had acted with conduct prejudicial to the reputation of the bank,
there was a responsibility to issue a charge memo.
28. It is also contended by the learned Senior Counsel, that
the employees of the bank were members of the society. The
members of the society took loans from the cooperative society
and it was therefore contended that it was one homogeneous
group of employees / staff / officers been and those who were
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
charged belonged to the same homogeneous group. Those who
were victims, had suffered owing to the acts of misappropriation
also belonged to the same group. They all came were employees /
staff / officers of the respondent and, therefore, it was contended
the respondents had a right to examine the issues of the society.
29. Learned Senior Counsel also contended that the orders
of the Hon'ble Supreme Court and of the High Court of Punjab and
Haryana did not find fault with the charges but found fault with the
procedure adopted during the course of the enquiry and therefore
without examining the issues on merits, but only on what, the
learned senior counsel called, 'technical ground', had set aside the
said disciplinary proceedings. It was therefore contended that the
respondents had every right and in fact a duty to initiate
disciplinary proceedings.
30. In this connection, learned Senior Counsel also relied
on the dictum laid down by the Hon'ble Supreme Court and by the
High Courts. Before proceeding further it would only be obligatory
to refer to those judgments in seriatim.
30.1 The first judgment relied on was S.Govinda Menon v
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
Union of India and another [AIR 1967 SC 1274]. In that particular
case, an IAS officer was deputed to the Board of Revenue and to
the HR&CE. While functioning as such, he had apparently
committed acts inviting disciplinary action to be initiated against
him. He was not a member of those departments. However, the
respondent / Union of India to which any IAS officer has a direct
employee-employer relationship had thought it fit to issue
proceedings against the said officer. Questioning locus, the writ
petition has been filed. Finally it went up to the Hon'ble Supreme
Court. The Hon'ble Supreme Court while examining that particular
issue had used a very significant phrase. They had stated that
since he was 'a servant of the Government', the respondents have
every right to initiate disciplinary proceedings. It was stated that if
the acts of omission reflected on the reputation of the officer or his
integrity or good faith, even though there could be no direct
master-servant relationship, still the respondents had a right to
initiate disciplinary proceedings. I must however point out that on
a very slight narrow ground, the facts in this particular case are
distinguishable.
30.1.1 Here, the Society is an independent organisation
as such. It is governed by the Punjab Cooperative Societies Act.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
That is a self-contained Act. If any acts of misconduct or
misappropriation are conducted, the Act comes into play and,
according, to those provisions, necessary action can be initiated.
To that extent, though the dictum laid down by the Hon'ble
Supreme Court is binding, the facts are distinguishable.
30.2 The second judgment relied on was Union Bank of
India, Mumbai v K.K.Salin [(2001) 4 LLN 226 Bombay]. The facts in
that case are also quite interesting. An employee of a Nationalized
Bank, namely Union Bank of India, went about promising his co-
employees that he would start a cooperative society and collected
funds for such cooperative society. It was stated that after
collecting such funds, he was not be able to refund the amounts to
the members when demanded. He actually did not have money in
the bank. He issued cheques, which were returned dishonoured.
Thereafter, it was found that the employee in that particular case,
the respondent before the Bombay High Court had conducted an
independent trade or business and that was violative of the Rules
guiding this employment. It was held in that particular case, that
the employer would have jurisdiction to initiate the disciplinary
proceedings. It was stated that the foundation of misconduct which
was committed bore sufficient nexus with the business or activity
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
of the employer.
30.2.1 There was a reference in the particular judgment
of the Bombay High Court to an earlier judgment of the Division
Bench, namely, Nandita B.Palekar v Y.S. Kasbekar and others
[1985 II LLJ 336 Bom]. In that particular case, disciplinary
proceedings were sought to be initiated against a Senior Clerk of
the Maharashtra Housing Board to whom a tenement had been
allotted. One of the conditions was that he should not sublet the
premises without consent of the Board. It was found that the
tenement was allotted not in his capacity as an employee of the
Board. The Division Bench in that particular case had held that
consequences which were prescribed by the Housing Board for
cancellation of allotment and eviction would apply but the bank
could not proceed further with disciplinary proceedings.
30.2.2 In the instant case, the petitioner herein did not
create a cooperative society. The society was already in existence.
He was an office bearer of the society. It is alleged that he had
committed acts of misappropriation. The veracity of that allegation
is beyond the scope of this Court to verify. But it must also be
pointed out that, that particular society was governed by a
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
separate legislation which had its own provisions for proceeding in
a case of misconduct or misappropriation. Therefore, on facts, this
particular judgment would also be distinguishable so far as the
facts of the case is concerned.
30.3 The third judgment, which was pointed out by learned
Senior Counsel, was on very similar facts to that of the present
writ petition is concerned i.e., Burdwan Central Cooperative Bank
Limited and another v Asim Chatterjee and others [(2012) 2 SCC
641]. The respondent in that particular case was originally
employed in what was called a Samity. Thereafter, he joined the
services of the appellant bank. After he joined the services of the
appellant bank, certain acts inviting disciplinary proceedings came
to be initiated when he was functioning as an employee of the
Samity. Therefore, when he was an employee of the bank, a
charge-sheet was issued and disciplinary proceedings stood
initiated. The Hon'ble Supreme Court stated that disciplinary
proceedings stood vitiated. They set aside the view taken by
learned Single Judge and by the Division Bench of the High Court
and stated that allegations of defalcation made against the
respondent therein when he was previously employed under the
Samity, could be proceeded against the appellant bank. They had
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
so examined and they had dismissed him from the service. That
dismissal was upheld and justified by the Hon'ble Supreme Court.
The reasons of the Hon'ble Suprme Court are set out below:-
“15. Having carefully considered the
submissions made on behalf of the respective
parties and having regard to the fact that the
Respondent No. 1 was an employee of the
Samity, which was a cooperative society
affiliated to the Appellant Cooperative Bank
herein, there was a link between the previous
employment of the Respondent No. 1 and his
subsequent appointment under the Appellant-
Bank. It has to be kept in mind that under its
Recruitment Rules, the Appellant-Bank was
entitled to recruit people from the affiliated
societies through a regular recruitment
process. Accordingly, even though the
Respondent No. 1 was employed by a different
Cooperative Society, the same had a link with
the Appellant-Cooperative Bank on the basis
whereof the Respondent No. 1 was appointed
by the Appellant-Bank on 8th September,
1997.
x x x
18. The decision of this Court in S. Govinda
Menon's case (supra), cited by Mr. Ray, also
has a direct bearing on the facts of this case,
where, although the Respondent No. 1 was not
under the administrative control of the
Appellant-Bank, prior to his service with the
Bank, his previous conduct was a blot on his
integrity and devotion to duty as a member of
the service. Since no prejudice had been
caused to the Respondent No. 1 by the
nonsupply of the Enquiry Officer's report or the
second show-cause notice under Article 311(2)
of the Constitution, the Respondent No. 1 had
little scope to contend that the principles of
natural justice had been violated which had
vitiated the proceedings.
x x x
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
21. This is, in fact, a case where the order of
punishment had been passed against the
Respondent No. 1 on allegations of financial
irregularity. Such an allegation would require
serious consideration as to whether the
services of an employee against whom such
allegations have been raised should be retained
in the service of the Bank. Since a Bank acts in
a fiduciary capacity in regard to people's
investments, the very legitimacy of the
banking system depends on the complete
integrity of its employees. As indicated
hereinbefore, there is a live-link between the
Respondent No. 1's performance as an
employee of the Samity, which was affiliated to
the Bank, and if the Bank was of the view that
his services could not be retained on account of
his previous misdemeanor, it is then that the
second part of B. Karunakar's case (supra)
becomes attracted and it becomes necessary
for the court to examine whether any prejudice
has been caused to the employee or not before
punishment is awarded to him.
x x x
23. In the above circumstances, we cannot
agree with the view taken by the learned
Single Judge, as affirmed by the Division Bench
of the High Court, that the Appellant- Bank had
no jurisdiction to proceed against the
Respondent No. 1 by way of disciplinary
proceedings in regard to the allegations of
defalcation made against him while he was
employed under the Co-operative Samity which
was an affiliate of the Appellant-Bank. The
other decision cited by Mr. Ray in S. Govinda
Menon's case (supra) also makes it abundantly
may not have been under the direct
administrative control of the Bank at the
relevant point of time when the defalcation is
alleged to have taken place, on account of the
affiliation of the Samity with the Bank under
the provisions of the West Bengal Cooperative
Societies Rules, 1987, the Appellant-Bank had
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
jurisdiction over the Respondent No. 1 after he
joined the employment of the Appellant-Bank.
In the instant case, since the question of
integrity in managing the accounts of the
Samity is in question, it was but natural for the
Bank to proceed departmentally against the
Respondent No. 1 after coming to learn of the
allegations which have been made against
him.”
30.3.1 The reasoning of the Hon'ble Supreme Court was
that banks act in fiduciary capacity with respect to investments by
the public. If there is misappropriation by any employee it would
directly affect the very legitimacy of the banking system and
impinge on its own integrity. These words drive home the point
that even if the petitioner herein had committed acts of
misappropriation in a separate society, still since the society was
also involved with extending loans to its members, and when
integrity of that particular person is called into question, it is the
reputation of the respondents which is finally affected, since the
integrity of their own officer is being questioned. The confidence
which the general public had while entrusting their finances with
the respondent would be deroded to that limited extent.
30.3.2 This judgment provides a bridge between the
respondent on the one hand and the acts of the petitioner on the
other hand and is more directly applicable to the facts of the case.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
30.4 There was also reference to Superintendent (Tech.I)
Central Excise, I.D.D.Jabalpur and others v Pratap Rai (1978) 3
SCC 133. The facts in that case are singularly different wherein, an
earlier order was passed 'without prejudice' setting aside the
proceedings of adjudication. A second adjudication was initiated. It
was justified on the ground that the earlier order had been passed
'without prejudice'. Those facts, cannot be applied to the facts this
case.
30.5 The next judgment is that of the Division Bench of this
Court in Sattar Sahib v State of Madras [1952 (65) LW 414].
Again, this case does not advance the case of the respondents
because after the earlier proceedings had been quashed, a careful
reading of the judgment shows that it was directed that the
Tribunal can take up the application and re-hear the same. This
would mean that the earlier charges would lie and fresh charges
cannot be framed. The specific phrase which was used was 're-
hear the same'.
30.6 The next judgment which was relied on was the
judgment of the Andhra Pradesh High Court in the case of
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
Thimmasamudram Tobacco Co., vs Assistant Collector of Central
Excise, Nellore Dn, Nellore [AIR 1961 AP 324]. There again, it had
been stated that if the earlier proceedings had been set aside on
the grounds of violation of principles of natural justice, then the
procedure can be started once again. This judgment was relied on
to justify the initiation of fresh charges on the second occasion
against the petitioner herein. But there again, reliance was made
to Sattar Sahib (supra), wherein the Division Bench of the Madras
High Court had very categorically stated that the Tribunal should
re-hear the same.
31. The respondents also relied on the judgment of the
Hon'ble Supreme Court in Anand Narain Shukla v State of Madhya
Pradesh [(1980) 1 SCC 252]. This judgment again would not come
to the rescue of the respondents since, therein, after the appellant
had been reinstated he was placed under suspension, fresh
proceedings were started on the basis of the 'same old charges'. It
is thus seen that though the earlier order was quashed on technical
grounds, the same old charges had been proceeded against.
Thereafter, the Hon'ble Supreme Court had stated as follows:-
“We find no substance in either of the points
urged on behalf of the appellant. The earlier
order was quashed on the technical ground. On
merits, a second enquiry could be held. It was
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
rightly held. The order of reinstatement does
not bring about any distinction, in that, regard.
The Government had to pass that order
because the earlier order of reversion had been
quashed by the High Court. Without reinstating
the appellant, it would have been difficult
perhaps unlawful, to start a fresh enquiry
against the appellant. The observations of this
Court in the last paragraph of the judgment in
State of Assam and Anr. v. 7. N. Roy Biswas
MANU/SC/0476/1975 : (1976)IILL J17SC are
not applicable to the facts of the present case
and do not help the appellant at all.”
31.1 Without reinstating the appellant it would have been
difficult, perhaps, unlawful to start a fresh enquiry against the
appellant. In other words, the Hon'ble Supreme Court had also
observed that starting of fresh enquiry would in their words be
'unlawful'.
32. Learned Senior Counsel appearing on behalf of the
respondents also placed reliance on Vipulbhai Mansinghbhai
Chaudhary v State of Gujarat and another [(2017) 13 SCC 1]. In
that case, a show-cause notice was first issued. The show-cause
notice was quashed. A second show-cause notice was issued. It
must be pointed out that there is ample difference between a
show-cause notice and a charge memo. A show cause notice is a
notice issued calling upon the delinquent to show cause or give
necessary explanation as to why further proceedings need not be
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
initiated against him. Opportunity is inbuilt in the show-cause
notice itself. A charge memo on the other hand is initiation of
disciplinary proceedings and a further serious step taken by the
employer against the employee. Two separate show-cause notices
being issued cannot be equated with a first proceedings being set
aside and the second charge memo being issued. Therefore, this
judgment again is distinguishable on facts.
33. Learned Senior Counsel on behalf of the respondents
also relied on the judgment of a learned Single Judge of this Court
in M.Sakthivel v The General Manager, Regional Office of the Food
Corporation of India [W.P.No.2319 of 2010 dated 09.02.2010]. In
that particular case, not only was the petitioner therein proceeded
with disciplinary proceedings, but more importantly his action also
invited an FIR to be registered against him by the CBI. Taking into
consideration that particular fact which went to the root of the acts
of misappropriation or misconduct, learned Single Judge justified
initiation of disciplinary proceedings. Though the petitioner herein
had not fallen into such a deep well, in the instant case, still it
would be apt to extract the reasoning of the learned Single Judge:-
“25. The other contention that in respect of
misconduct or irregularity committed in the Co-
operative Society run by the employees, no
action can be taken also cannot be accepted.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
First of all, it is the society run by the
employees of the same Corporation. Only by
virtue of their being employees of FCI, they are
eligible for membership in the said society.
Many times, it is noticed that employees, who
are holding office and are Board of Directors of
such societies, are given duty relief by the
employer to attend to the Society's work. Even
otherwise, since CBI has registered a criminal
case under the Prevention of Corruption Act,
which charge came to bed only because the
petitioner is a "public servant" and was
allegedly in possession of assets
disproportionate to known sources of income.
Hence that contention also must fail.”
33.1 Even in that particular case, the employee was
alleged to have committed acts of misappropriation in a
cooperative society allied with the corporation where he worked. It
had been observed that the members of the cooperative society
were the employees of the Food Corporation of India and,
therefore, the right of the employer to initiate disciplinary
proceedings was recognized and upheld.
34. Learned counsel for the petitioner placed reliance on
the judgment in Chief of Army Staff and others v Major Dharam Pal
Kukrety [(1985) 2 SCC 412], and more importantly, placed
reliance on paragraph 5, which reads as follows:-
“The same contentions, as were raised before
the High Court, were taken before us at the
hearing of this Appeal. We will first deal with
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
the Appellants' preliminary objection that the
Respondent's writ petition was not
maintainable as being premature. It was the
Respondent's case that the Chief of the Army
Staff had no jurisdiction to issue the impugned
show cause notice after he had been again
found not guilty by the court-martial on
revision. The said notice expressly stated that
the Chief of the Army Staff was of the opinion
that the Respondent's misconduct as disclosed
in the proceedings rendered his further
retention in service undesirable and asked him
to submit his explanation and defence, if any,
to the charges made against him. If the
Respondent's contention with respect to the
jurisdiction of the Chief of the Army Staff to
issue the said notice were correct, the
Respondent was certainly exposed to the
jeopardy of having his explanation and defence
rejected and he being removed or dismissed
from services. Were the said notice issued
without jurisdiction, the Respondent would
have then suffered a grave, prejudicial injury
by an act which was without jurisdiction.
Where the threat of a prejudicial action is
wholly without jurisdiction, a person cannot be
asked to wait for the injury to be caused to him
before seeking the Court's protection. If, on
the other hand, the Chief of the Army Staff had
the power in law to issue the said notice, it
would not be open to the Respondent to
approach the court under Article 226 of the
Constitution at the stage of notice only and in
such an event his writ petition could be said to
be premature. This was, however, not a
contention which could have been decided at
the threshold until the court had come to a
finding with respect to the jurisdiction of the
Chief of the Army Staff to issue the impugned
notice. Having held that the impugned notice
was issued without any jurisdiction, the High
Court was right in further holding that the
Respondent's writ petition was not premature
and was maintainable.”
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
34.1 The Chief of Army had issued a notice calling upon the
respondent therein, to show cause as to why he should not be
removed from service. The authority of the appellant / Chief of
Army Staff to issue such a notice was put into test. The notice was
struck down by the Hon'ble Supreme Court. The facts however
distinguishable from this case.
35. Reliance was also placed on a Division Bench judgment
in the case of T.Retnapandian v Tamil Nadu Cements Corporation
Limited Rep. By its Chairman cum Managing Director and others
[W.A.No.4299 of 2019 dated 21.06.2023]. The Division Bench in
that particular case had stated that private business or trade or
occupation by a family member cannot be prohibited under the
rules of the employer. In that particular case, the wife of the
appellant had begun to construct the house. Disciplinary
proceedings were initiated against the appellant. Quite correctly,
the Division Bench held that the appellant cannot be proceeded
against for an independent business of his wife. The ratio however
does not advance the case of the petitioner.
36. I have given my careful consideration to the arguments
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
advanced and to the materials on records.
37. The facts are clear. The facts are straight forward. The
appellant was an officer under the respondent. He was also
incidentally, a member of the Managing Committee, Treasurer and
also President of what can be called as NABARD Employees
Cooperative Society. He could have exercised caution while holding
such posts. Unfortunately, his acts had invited charges of
misappropriation of quite a substantial sum of money. Judicial
review would not lie on facts in an enquiry proceedings but on the
procedure which had been adopted. There was a first round of
departmental proceedings which had been initiated and that
suffered an adverse order before the Hon'ble Supreme Court and
also by the High Court of Punjab and Haryana. Thereafter, the
impugned second charge memo was issued to the petitioner herein
when he was transferred to Chennai.
38. The issue is whether such second charge memo could
be issued when it was pari materia on the same facts as contained
in the first charge memo. The answer is 'NO'.
39. When a person is charged with a particular offence and
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
later, after explanation is given, an enquiry officer is appointed
and disciplinary proceedings are conducted, then if the disciplinary
proceedings are interfered with by a Court, in this case by the
Hon'ble Supreme Court, then if at all the respondent still wanted to
proceed against the employee they should revive the earlier charge
memo. They should have sought such permission before the
Hon'ble Supreme court. They cannot merely hide behind the claim
that since the matter had suffered an order of dismissal on
technical grounds they have the right to issue a second charge
memo against the employee. This is unheard of in departmental
proceedings. The charge memo should proceed to run its entire
course. The respondents were represented before the Hon'ble
Supreme Court. They knew that the grounds raised touched upon
violation of principles of natural justice during the earlier
departmental proceedings.
40. When that was the ground raised before the Hon'ble
Supreme Court then it was incumbent on the part of the
respondents to have sought liberty to proceed again on the same
charge memo. Failure to even seek liberty would not give them
leverage to issue a second set of charges on the very same set of
facts. That both the charge memos related to practically the same
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
set of facts is not denied or disputed. They both surround the main
allegation that the petitioner was responsible for misappropriation
while functioning as office bearer in the society. Let me extract
the operative part of order of the Hon'ble Supreme Court in
C.A.No.10809 of 2014:-
“9. The narration of the facts, above
mentioned, indicates quite clearly that the
procedure adopted by the Inquiry Officer was
completely unsatisfactory and arbitrary. No
opportunity was given to the appellant either to
examine the documents that were sought to be
relied upon by the Inquiry Officer and indeed
copies of the documents were not made
available to the appellant. Similarly, the Inquiry
Officer examined three witnesses without
giving an opportunity to the appellant to even
know their names in advance.
10. In the absence of any proper procedure
having been followed by the Inquiry Officer,
there is no doubt that the departmental
proceedings require to be quashed and we do
so accordingly.
11. As a consequence of quashing the
disciplinary proceedings as well as the inquiry
report, we set-aside the order of dismissal
passed against the appellant and the order
rejecting his departmental appeal as well as
the order dismissing his writ petition.
12. The appeal is allowed in the above terms.
The appellant will be entitled to all
consequential benefits. No costs.”
41. It is not the case of the respondents herein that they
were not heard by the Hon'ble Supreme Court or that they did not
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
have any opportunity to seek leave or liberty to proceed once
again and re-commence enquiry on the charges already framed. No
employee can be proceeded against on the same set of facts again
and again. It should be once and that should run its normal course.
42. The second vital aspect so far as the present writ
petition is concerned is the competency of the officer who issued
charge-sheet. In this connection, the Chairman of the respondent
had taken a conscious decision to appoint an enquiry officer in the
first instance. The document relating to that had been presented
before this Court and let me extract that particular document in
entirety:-
““Appointment as Adhoc Competent Authority
We advise you that the Chairperson has
appointed you as an adhoc competent
authority on the matter pertaining to NABARD
Employees Cooperative Urban Salary Earners
Thrift and Credit Society, Chandigarh vide Rule
47(3) of NABARD (Staff) Rules, 1982.
We are forwarding herewith the necessary case
papers for your kind perusal and further actino.
Yours faithfully
Sd/-
(A.K.Srivatsava)
General Manager”
“1.Preliminary Audit Report in respect of the
above Society has been submitted by the
Assistant Registrar and an Administrator has
been appointed to set the records straight.
2.Show cause notices have been issued to 13
employees of NABARD in this case.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
3.The employees who have been named in the
Audit Report are a mix of Officers cadre (up to
Grade 'C') and Group B & C and further, are
spread over 3 different ROs (Chandigarh – 9,
Dehradun – 3 and Shimla – 1).
4.As per the amended (February 2004) Staff
Rules, 1982 for Officers in Grade A to C in the
ROs,the CGM in-charge is the Competent
Authority, while Group B and C, GM-in-charge
of Administration is the Competent Authority.
5.Under the circumstances, for the sake of
uniformity in the disciplinary proceeding and to
avoid divergent views, it will be necessary to
appoint an ad-hoc Competent Authority from
the Head Office.
6.I have consulted Law Department in this
matter and recommend that Shri M.P.Mohanan,
CGM. HRMD,HO may be appointed as ad-hoc
Competent Authority.
7. CP may please approve his appointment as
ad-hoc Competent Authority vie Rule 47(3) of
Staff Rules, 1982.””
43. The sixth clause referred above clearly shows that the
law department had recommended the Chief General Manager,
Head Office to be appointed as the ad-hoc Competent Authority.
He had then initiated proceedings but unfortunately, was himself
charged with violation of principles of natural justice. The
proceedings were cut half way through by the orders of the Hon'ble
Supreme Court and of the High Court of Punjab and Haryana.
44. The Chief General Manager at Chennai had no authority
to issue such a second charge memo. The rules are clear in this
particular aspect. Rule 47 reads as follows:-
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
“47. Penalties (1) Without prejudice to the
provisions of the other Rules ,an employee who
commits a breach of the Rules of the National
Bank or who displays negligence, or indolence
or who know knowingly does anything
detrimental to the interests of the National
Bank or in conflict with its instructions, or who
commits a breach of discipline or is guilty of
any other act of misconduct, shall be liable to
the following penalties:
(a) reprimand;
(b) delay or stoppage of increment or
promotion
(c) degradation to a lower post or grade or to a
lower stage in his incremental scale;
(d) recovery from pay of the whole or part of
any pecuniary loss caused to the National Bank
by the employee;
(dd) compulsory retirement;
(e) dismissal
Explanation – As employee who is otherwise
eligible for voluntary retirement in terms of
sub-rule (3) or (3A) of Rule 19 only may be
subjected to the penalty at (dd) above and in
that case, the employee will be eligible for all
retirement benefits, ordinarily admissible on
voluntary retirement under sub-rule (3) or (3A)
of Rule 19.
(2) No employee shall be subjected to the
penalties, except by an order in writing signed
by the Competent Authority and no such order
for penalties, other than that at (a) of sub-rule
(1), shall be passed without the charge or
charges being formulated in writing and given
to the said employee so that he shall have
reasonable opportunity to answer them in
writing or in person, as he prefers, and in the
latter case his defence shall be taken down in
writing and read out to him;
Provided that requirements of this sub-rule
may be waived if the facts on the basis of
which action is to be taken have been
established in a court of law or Court Martial or
where the employee has absconded or where it
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
is for any other reason impracticable to
communicate with him or where there is
difficulty in observing them and the
requirements can be waived without injustice
to the employee. In every case where all or
any of the requirements of this sub-rule are
waived, the reasons for doing so shall be
recorded in writing.
(3) Notwithstanding anything contained in sub-
rule (2) or in any other Rule, if two officers in
different grades or an officer and an employee
in Group 'B' or Group 'C' are involved jointly in
an incident and disciplinary proceedings are
sought to be instituted against both of them
and the Chairman is of the opinion that having
regard to the facts and circumstances of the
case, the Competent Authority in respect of
both the officers/employees should be the
same, the Chairman may direct that the
Competent Authority in respect of the higher
Group employees as defined in sub-rule (i) of
Rule 3 shall be the Competent Authority in
respect of both the officers/employees involved
and a common enquiry shall be held into the
charges against both of them and the
delegation under sub-rule (4) of the enquiry
under this Rule and the procedure, with the
exception of the final order shall be in favour of
the same enquiry officer.”
44.1 Sub-rule (i) of Rule 3 stated above is as follows:-
“the Competent Authority means:
1) the Chairman in the case of Officers in
Grade 'F' and above in all matters falling under
Chapters II, III and IV of these Rules, i.e.,
matters relating to service conditions,
seniority, conduct / discipline etc.
2) (i) the Managing Director in the case of
Officers in Grade 'D' and 'E' in all matters and
in the case of Officers in Grade 'F' and above in
all matters other than those falling under
Chapters II, III and IV of these Rules.
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
(ii) (a) the Chief General Manager, Human
Resources Management Department, Head
Office in the case of Officers in Grades 'A', 'B'
and 'C' in Head Office.
(b) the Chief General Manager, Human
Resources Management Department, Head
Office in the case of Officers in Grades 'A', 'B'
and 'C' at Regional Offices which are headed by
Grade 'D' officers.
(c) Chief General Manager / Officer-in-Charge
in Grade 'E' of Regional Office, Principal of
Training Establishment in case of Officers in
Grades 'A', 'B' and 'C'.
3) the General Manager, Human Resources
Management Department in case of employees
in Groups 'B' and 'C' working at Head Office.
4) General Manager in-charge of Personnel
Administration or in case there is no General
Manager in-charge of Personnel Administration,
Deputy General Manager, Personnel
Administration in the case of employees in
Groups 'B' and 'C' working at Regional Office
and Sub-office under the control of the
Regional Office.
5) General Manager in-charge of Personnel
Administration or in case there is no General
Manager in-charge of Personnel Administration,
Deputy General Manager, Personnel
Administration in the case of employees in
Groups 'B' and 'C' working at Training
Establishments.
It means in regard to any matter or power to
be dealt with or exercisable by the Chairman
under these Rules which has been delegated to
any other authority, the authority to whom the
disposal of the matter or the exercise of the
power has been delegated.”
45. It very clearly states that the Chief General Manager at
the Headquarters alone can initiate disciplinary proceedings.
Though both the officers may be of the same rank and as pointed
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
out by learned Senior Counsel for the respondents, the one factor
which should be kept in mind in disciplinary proceedings is that the
delinquent should not be holding a superior / higher rank than that
of the enquiry officer, still, when the Rules provide that Chief
General Manager at Headquarters should be enquiry officer, the
issuance of the second charge memo by the Chief General
Manager, Chennai strikes at the very heart of the matter.
46. I would hold that the respondents have a right to
conduct disciplinary proceedings in view of the judgment of the
learned Single Judge of this court in M.Sakthivel (supra) and
Burdwan Central Cooperative Bank Limited (supra). But that does
not mean that they have the right to issue multiple charge memos
on the same set of facts against a delinquent. They have to issue a
charge memo, once and proceed in the manner known to law. If
that proceedings are interfered with, then leave / liberty must be
sought, seeking to re-commence on the basis of the same charge
memo and proceed further. The second charge memo may be a
mirror image of the first charge memo but the authority to issue a
second charge memo, cannot be encouraged in service
jurisprudence except under authority of law. The authority to issue
a charge memo is a vested right that does not cloak the employer
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
with the right to issue multiple charge memos. They can re-
commence the enquiry proceedings at the stage where it was
stopped or at the stage where it was interfered with. But they
cannot restart the entire proceedings once again by issuing a
second charge memo. On that ground, the relief sought in the writ
petition necessarily has to be granted.
47. I am informed that the enquiry officer had conducted
the enquiry but the entire proceedings are set aside.
48. The writ petition is allowed. No costs. Connected
miscellaneous petitions are closed.
31.07.2023
Index:Yes
Neutral Citation:Yes
ssm
To
1.The Chairman,
National Bank for Agriculture and Rural Development
C-24, G Block, Bandra Kurla Complex,
Post Box No.8121,
Bandra (E), Mumbai – 400 051.
2.The Chief General Manager,
NABARD, Regional Office.
3.The Deputy General Manager
NABARD Regional Office
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
Respondents 2 & 3 at
No.48, Mahatma Gandhi Road,
Nungambakkam, Chennai – 600 034
https://www.mhc.tn.gov.in/judis
W.P.No.17266 of 2017
C.V.KARTHIKEYAN,J.
ssm
W.P.No.17266 of 2017
31.07.2023
https://www.mhc.tn.gov.in/judis
