R. Chinna Peddanna, vs District Collector/Person ...
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           IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
                             AT HYDERABAD

                           (Special Original Jurisdiction)


              THURSDAY, THE FOURTEENTH DAY OF OCTOBER
                      TWO THOUSAND AND FOUR



                                    PRESENT

                 THE HON'BLE DR JUSTICE G.YETHIRAJULU



                       WRIT PETITION NO: 17982 of 2004



Between:

R. Chinna Peddanna, S/o. Gangaram,
(Under Suspension), working in The Karimnagar District Co-op. Central Bank Ltd.
Gangadhara Branch, Jagitial, Karimnagar District,
R/o. H.No. 1-2-177, Krishnanagar, Jagital, Karimnagar District

                                                                   ... PETITIONER

AND



  1. District Collector/Person Incharge, The Karimnagar District Co-op. Central
         Bank Limited, at Karimnagar.

  2. The Karimnagar District Co-op. Central Bank Limited, rep by its General
        Manager, Karimnagar.

                                                                ...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Certiorari or any other appropriate writ and quash the order of punishment issued by the 1st respondent in Proceedings No. B5/1381/2004-2005 dated 27-9-2004 and direct the respondents to reinstate the petitioner in service and allow all consequential benefits including arrears of wages and to pass such other order or orders as this Court deems fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.V.VENKATARAMANA Counsel for the Respondent Nos.1 and 2: MR.P.M.GOPALA RAO

The Court at the admission stage made the following:

1. The petitioner joined the service of the second respondent Bank as a Supervisor in the year 1987. On 10-9-2003, as per the instructions of the Branch Manager, he was entrusted with the duty of in-charge cashier. On 30-9-2003 there was a theft in his branch and an amount of Rupees four lakhs was stolen from the said branch. The petitioner contends that the then Branch Manager confessed that he himself was responsible for theft

and accordingly remitted Rs.2,50,000/-, the then cashier paid Rs.20,000/-, and an Attender paid Rs.40,000/-. The petitioner contends that he is no-

way concerned with the theft or admission of the guilt by the Branch Manager and he was falsely implicated in Crime No.65 of 2003.

Subsequently, a charge sheet was filed and the crime was numbered as C.C.No.37 of 2004 on the file of the Judicial Magistrate of First Class,

Sircilla, Karimnagar District for the offences under Sections 408 and 381

read with 34 IPC and the criminal case is pending trial. During the pendency of the criminal case, the second respondent issued a charge

Memo on 4-3-2004 calling for his explanation regarding the theft of cash from the

bank . He submitted his explanation on 31-3-2004. But, the second respondent appointed an enquiry officer on 23-4-2004 and the enquiry

officer submitted a report on 12-6-2004 holding that the charges against the petitioner are proved. Subsequently, the second respondent issued a

show cause notice on 28-7-2004 proposing the punishment of dismissal from service and called for his explanation. The disciplinary authority for

the category of Clerk-cum-Supervisor is the President of the Society, who

is the appointing authority. The General Manager of the second respondent bank has no disciplinary jurisdiction. Since there is no elected

Chairman for the bank, and the District Collector is the person in-charge, the show cause notice can be issued only by the person in-charge i.e., the

Collector. Therefore, the show cause notice issued by the second respondent on 28-7-2004 is vitiated and he has no jurisdiction to issue the

same. The petitioner filed W.P.No.14514 of 2004 questioning the show cause notice on the ground that he was not given an opportunity in the

enquiry. The writ petition was disposed of by this Court on 17-8-2004 directing him to submit an explanation to the show cause notice in which

the punishment of dismissal from service was proposed. The petitioner

did not submit his explanation, but he received an order of dismissal from service passed by the first respondent on 27-9-2004. The petitioner

therefore questioned the validity of the order of dismissal on the ground that the final show cause notice was not issued to him by the competent

authority. The petitioner therefore contends that the disciplinary authority did not issue the show cause notice as required under the rules and there

was no application of mind by the disciplinary authority before issuing the final show cause notice and as the show cause notice was issued by the

General Manager without mentioning that the disciplinary authority directed him to issue the show cause notice after passing appropriate orders in the matter, the impugned order is liable to be quashed. He

therefore approached this Court through this writ petition seeking to quash the order of dismissal passed by the first respondent through proceedings dated 27-9-2004 and to direct the respondents to reinstate him into

service with all consequential benefits.

2. In support of the above contentions, the learned counsel for the

petitioner relied on a judgment of the Supreme Court in Khem Chand v.

Union of India wherein the Supreme Court while dealing with Article 311

(2) of the Constitution of India held as follows:

21. ... If the competent authority were to determine, before the charges were proved, that a particular punishment would be meted out to the government servant concerned, the latter may well feel that the competent authority had formed an opinion against him, generally on the subject matter of the charge or, at any rate, as regards the punishment itself. Considered from this aspect also the construction adopted by us appears to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen to have been done.

3. In the case covered by the above decision, one J.B.Tandon concluded the enquiry and found the appellant guilty of all the charges and that the punishment of dismissal should be the proper form of punishment. The said J.B.Tandon was not the competent authority to dismiss the appellant and therefore he could only make a report to the Deputy Commissioner, who was the person competent to dismiss the appellant. When the Deputy Commissioner accepted the report of Sri J.B. Tandon and formed the opinion that the punishment of dismissal

should be inflicted on the appellant, and at that stage being reached, a show cause notice was issued on the appellant to show cause as to why that particular punishment should not be inflicted on him. In the above

factual background the Supreme Court held that there is therefore no getting away from the fact that Article 311 (2) had not been fully complied with and the appellant had not had the benefit of all the constitutional protection and accordingly his dismissal could not be supported.

4. The learned counsel for the petitioner submitted that though the

final show cause notice was issued to him, it was not signed by the disciplinary authority and it was only signed by the General Manager of the second respondent bank, therefore, the principles of natural justice are violated and the order of the first respondent is vitiated.

5. The learned counsel for the respondents submitted that the draft

show cause notice prepared in the office was approved by the first respondent and after due approval of the first respondent only the General Manager of the second respondent bank issued the show cause notice. The learned counsel produced the relevant file to impress upon this Court

that the office note has been approved by the first respondent before issuance of the final show cause notice to the petitioner. He therefore contends that the mere non-mentioning in the show cause notice that the disciplinary authority directed the General Manager to issue the show

cause notice cannot be treated as a major irregularity in following the procedure. Therefore, the order of dismissal passed by the first respondent cannot be disturbed. In support of the above submissions, the

learned counsel relied on the following judgments of the Supreme Court:

6. In Bakshi Sardari Lal v. Union of India the Sub-Inspectors, Head

Constables and Constables were dismissed from service by way of punishment. They challenged those orders before the Delhi High Court contending that the exercise of power under Clause (c) of the second

proviso to Article 311 (2) was not upon President's personal satisfaction and as there had been no inquiry as mandated by Article 311 (2), the dismissals were bad. The High Court did not accept the contention and rejected the writ petition. The dismissed policemen carried the appeals to

the Supreme Court and a Constitutional Bench of the Supreme Court set aside the judgment of the Delhi High Court and quashed the orders of dismissal on the ground that each order of dismissal was illegal, ultra vires and void.

7. The delinquents in the said case contended that the President of

India did not personally satisfy before passing the orders. After going through the file, the Supreme Court found that the order was passed by the President of India after the approval made by the Council of Ministers. In that connection, the Supreme Court observed as follows:

The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Government of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or the Governor but the satisfaction of the President or Governor in the constitutional sense in the cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any minister or officer under rules of business made under any of these two Articles 77 (3) and 166 (3) is the decision of the President or the Governor respectively. These Articles did not provide for any delegation. Therefore, the decision of minister or officer under the rules of business is the decision of the President or the Governor.

8. I n State of Haryana v. Hari Ram Yadav the suspension of an

officer of All India Services was under challenge. There was no recital in

the suspension order that the Governor was satisfied about the 'necessity or desirability' of placing respondent No.1 under suspension. The impugned order on the other hand mentioned that the Governor was

"pleased" to suspend the respondent. Declaring this order to be valid, the

Supreme Court held as follows:

Mere fact that the impugned order of suspension does not contain a recital does not render the said order invalid. In cases where exercise of statutory power is subject to fulfillment of a condition, then recital in the order about the condition having been fulfilled raises a presumption about fulfillment of such condition. The burden is on person who challenges validity of order to show that the said condition was not fulfilled. In a case where the order does not contain such recital, the burden to prove that the condition was fulfilled would be on the authority passing the order.

9. In the above case, there was a mention in the order of suspension that the "Governor was pleased to suspend the respondent" whereas in

the case on hand, there is no mention that the Collector directed the

General Manager to issue the show cause notice.

10. There is no dispute regarding the principle laid down by the Supreme Court in the above two decisions. But, in the light of the different

circumstances emerged in the case on hand, there is every justification to interfere with the order of dismissal passed by the first respondent dated

27-9-2004.

11. The show cause notice dated issued by the General Manager of

the second respondent bank reads as follows:

Whereas the charges were framed against Sri R.Chinna Peddanna, I/c.Cashier (U/S) for committing of certain irregularities in discharging his duties as cashier of the branch and in committing of theft of cash of Rs.4,90,708/- from the cash chest of the branch on 13-9-2003 (night). He was placed under suspension vide ref. 1st cited.

He has submitted explanation for the charge memo issued to him vide ref. 5th cited which is neither convincing nor satisfactory. With a view to provide an opportunity to defend his charges an enquiry was ordered by appointing Sri B. Subhakar Rao, DGM II of the bank as an enquiry officer under intimation to the C.S. employee.

The enquiry officer conducted detailed enquiry. The C.S. employee attended before the enquiry officer and submitted his deposition.

The enquiry officer submitted report vide ref. 7th cited stating that the charges framed against Sri R. Chinna Peddanna, I/c.Cashier (U/S) are held proved.

The C.S. employee is found guilty of gross misconduct under the provisions of Chapter XIII of settlement of award dated 15-6-97 under clause (IV) (d) (e) (j) (l).

Basing on the above, and the gravity of charges held proved it is felt just and proper to award him punishment of DISMISSAL FROM THE SERVICE OF THE BANK under Chapter XIII clause (v)(a) of settlement of award dt.15-6-'97 for committing of gross misconduct.

Therefore, show cause is hereby issued to Sri R. Chinna Peddanna, I/c.Cashier (U/S) to submit his explanation as to why he should not be dismissed from the service of the bank for committing of gross misconduct, besides recovery of amount as stated in the charge sheet together with interest @ 18% p.a. from the date of incident occurred to the date of realization. His explanation should reach the undersigned within (7) days from the date of receipt of this show cause notice, failing which the proposed punishment will be implemented, and the amount will be recovered from the terminal benefits, if any.

Copy of the enquiry report containing (4) pages is enclosed herewith for information.

Sd/-

General Manager.

12. Nowhere in the said show cause notice there is a mention that the

disciplinary authority perused the enquiry report or that the disciplinary authority after going through the record made up the mind to issue the

show cause notice and accordingly the General Manager was directed to

issue the show cause notice. If there is a recital that the disciplinary authority after accepting the report of the enquiry officer came to the

conclusion that the guilt of the petitioner is proved and accordingly

directed him to issue the show cause notice on behalf of the disciplinary authority to the petitioner calling for his explanation, the position would

have been different. Even in the final notice dated 16-9-2004 there is no mention that such notice was issued either on the directions or after the

approval of the first respondent- disciplinary authority. Though the

respondents produced a file to indicate that the first respondent passed the orders on the note file, there was no indication in the show cause notice that the same was issued under the instructions of the first

respondent. The first respondent who signed in the impugned order as a disciplinary authority ought to have issued the show cause notice by

himself or should have instructed the General Manager to mention in the

show cause notice that it was issued on the instructions of the disciplinary authority. In the absence of such recital in the show cause notice, it can

be concluded that there is violation of the mandatory rule that the disciplinary authority after making up the mind shall issue the final show

cause notice. When once there is no show cause notice from the

competent authority, the show cause notice issued by the General Manager shall be treated as non est. In the absence of show cause notice

by the competent authority, the order of dismissal is nothing but an order

passed by the disciplinary authority without giving sufficient opportunity to the petitioner to express his grievance and to reply to the said notice. In

the light of the above circumstances, I do not find any force in the

contention of the respondents that the show cause notice issued by the General Manager of the second respondent bank is a valid one. On the

other hand, I find sufficient force in the contention of the petitioner that the order of dismissal passed by the first respondent on 27-9-2004 is vitiated.

13. In the result, the writ petition is allowed. The impugned order dated

27-9-2004 passed by the first respondent dismissing the petitioner from

service is set aside. This order will not preclude the first respondent from issuing a fresh final show cause notice. The first respondent shall follow

the mandatory requirement under the rules, before taking further action in

the matter.

14. It is represented that the petitioner was under suspension as on the date of the impugned order, therefore, he shall be allowed to be

continued in suspension, till appropriate orders are passed by the first respondent in the matter, after giving opportunity to the petitioner. The

respondents shall also pay all the arrears of subsistence allowance, if

any, to the petitioner and continue to pay the subsistence allowance till the date of passing final orders.

____________________

(Dr.G. Yethirajulu, J)

14th October 2004

svs

ASSISTANT REGISTRAR

// TRUE COPY //

SECTION OFFICER

To

1. District Collector/Person Incharge, The Karimnagar District Co-op. Central Bank Limited, at Karimnagar.

2. The General Manager, the Karimnagar District Co-op. Central Bank Limited, Karimnagar.

3. Mr.V.Venkata Ramana, Advocate (OPUC)

4. Mr.P.M.Gopal Rao, Advocate (OPUC)

5. 2 CD copies