JUDGMENT
S.K. Katriar and Kishore K. Mandal, JJ.
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1. This appeal in terms of Clause 10 of the Letters Patent of the Patna High Court has been preferred by the heirs and legal representatives of Harendra Narain Banker (hereinafter to be referred as the employee, the original writ petitioner), who are aggrieved by the judgment dated 17.9.1999, passed in C.W.J.C. No. 7454 of 1989, whereby the writ petition was dismissed on the ground of delay in pursuing the remedies against the order of dismissal from service, passed by the Bihar State Co-operative Marketing Union Ltd. (hereinafter to be referred as the employer).
2. The employee had initially joined the employer’s services way back in the year 1965 as a Cashier. He was promoted to the post of Accountant in the year 1970. During the period 24.8.1976 to 26.3.1977, a sum of Rs. 3,73,082/- was disbursed by way of advances to two serving Assistant Engineers of the employer. The employee was at that point of time functioning as an Accountant. In view of the circumstances surrounding the disbursement, the employee had reported the allelged irregularities in disbursement to the appropriate authorities leading to the first information report on 30.3.1977, and the second first information report on 4.7.1977. The employee become an accused in the criminal case(s), was in custody from 10.9.1979 to 25.10.1979, and was released on bail by order dated 25.10.1979, passed by this Court. Thereafter the employee was sent up for trial, and was ultimately acquitted by judgment dated 16.7.1986 (Annexure-11). The State of Bihar preferred Government Appeal nos. 28 of 1986, and 29 of 1986, in this Court, which was dismissed by order dated 17.5.1987.
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3. The two F.I.Rs were followed by initiation of departmental proceedings against the petitioner. The memo of charges were served on him on 1.9.1977 (Annexure-4). He had shown cause by his communication dated 6.9.1977 (Annexure-5), whereafter the inquiry report was submitted on 23.7.1978 (Annexure-8), followed by the order of dismissal dated 20.10.1979. The employee approached this Court directly by preferring C.W.J.C. No. 5998 of 1983, which was dismissed by judgment dated 23.5.1985, reported in 1985 P.L.J.R. page-1078, whereby he was given liberty to take recourse under law. The employee preferred appeal before the Registrar of Co-operative Societies on 20.12.1988, which was dismissed by order dated 9.5.1989 (Annexure-9), leading to the present writ petition. The employee died on 11.4.1990, during the pendency of the writ proceedings, and was substituted by his heirs and legal representatives who are the appellants herein.
4. In fairness to the learned Counsel for the parties, we must state that elaborate submissions have been advanced along with a large number of reported judgments in support of their respective stand. We do not feel the necessity of recapitulating, let alone discussing, all those submissions because the appeal, in our view, can be disposed of on a short ground.
5. Learned Counsel for the employee submits that he cannot be held guilty in view of the findings recorded by the learned Inquiry Officer. On the other hand, learned Counsel for the employer contests this proposition and submits that the learned Inquiry Officer as well as the learned disciplinary authority had reached the right conclusions in view of the findings recorded in the inquiry report. He next submits that the proceedings are hit by unexplained delay, laches, negligence and acquiescence.
6. We have perused the materials on record and considered the submissions advanced by learned Counsel for the parties. We have given our anxious consideration to the diverse aspects of the matter. The learned Inquiry Officer has recorded as follows in his report:
…It further appears that in all these cases, advances were given to the Engineers for work of which the purpose were also not clearly indicated it may, therefore, be difficult to accept the contention of Sri Banker that he could not comment on the decision of his superior officers about payment of heavy advances in case. As regards contention of the Banker that it was not possible for a man to feel suspicion with his naked eye when the advances were given to any officer duly signed and ordered by the competent authority, it may be said that even if it may be possible that such things may escape, but it appears from the charges that the alleged advances were:
(1) For heavier amount that only of the previous advances in case in Biscomaun.
(2) Purposes were not clearly indicated on them.
(3) Advances were made mainly in the name of only one person and in earlier two cases in the name of another person;
(4) such heavy advances were made at regular intervals of some times less than a fortnight and within a gap of as little as 5 days;
(5) The vouchers were not receipted in full by the person in whose name such heavy advances were made;
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(6) were not supported by any paper to show that the person in whose favour heavy advances were paid had duly authorized another man to receive payment in his behalf; and
(7) The pay orders were signed by the Accounts Officer (Establishment) where as the advances were for work. Thus even if in absence of any clear order fixing the limit to be paid in cash for which benefit of doubt may be given to Shri Banker but in respect of charges that he not suspect foul play in view of the circumstances above it is difficult to accept the explanation of Sri Banker and the charges appears to be partly proved.
(Emphasis added)
7. It is thus manifest on a plain reading of the portion of the inquiry report extracted hereinabove that the advances had been made under the orders of the superior Officers and the competent authority. It is a possible situation that had the advances not been released as per the directions, the employee may have been proceeded against for disobedience of orders. Another important feature is that the advances had been disbursed to two serving Assistant Engineers of the employer. The advances were not made to outsiders meaning thereby that the employees were liable to account for the advances they had received. In this background, it would be travesty of justice to dismiss the employee on the tenuous ground that he did not suspect foul play. There was not much for him to suspect except that there may perhaps have been minor procedural irregularity. The competent authority and the recipients of the advances were answerable. The position would have been different had the order(s) for advances not been by a competent authority. In any case, the employee did report the affairs to the superiors which led to the two first information reports and he was punished for it. He become an accused, and was also proceeded against. The authorities must have felt exposed by the employee’s report leading to revengeful action against him. We are mindful of the examples that some times a clever accused steps into the shoes of the informant. In the present case, no circumstance at all has been brought to our notice causing suspicion about such a wily move on the part of the employee, and is surely not borne out from the enquiry report. In any case, there is now no scope for such a contention in view of the judgment of acquittal. We are, therefore, inclined to uphold the submission of the learned Counsel for the employee, reproduced in his own words, that “the petitioner was implicated because he was a small fry”. No material has been brought to our notice whether any action was taken against the superiors or the competent authority. We have also not been informed whether or not steps were taken against the Assistant Engineers who had received the advances, and whether or not they were made to account for the same. We are, therefore, of the view that the authorities, the learned Enquiry Officer, and the learned disciplinary authority were determined to fix a scapegoat which was found in the employee. We are convinced that the employee was victimised by spiteful and malafide action of the authorities, because he had reported the matter.
8. Learned Counsel for the employee has rightly relied on the following observations in the judgment of the Supreme Court in Kuldeep Singh v. Commissioner of Police and Ors. paragraph 42 of which is reproduced here for the facility of quick reference.:
The enquiry officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as Page 1729 also that of “reasonable opportunity”, contemplated by Article 311(2) of the Constitution. The “bias” in favour of the Department had so badly affected the enquiry officer’s whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur, their presence could have been procured and they could have been produced before the enquiry officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed “fix him up”.
We are thus of the view that the departmental authorities in the instant case found the employee guilty in such a coarse manner that it became apparent that it was merely carried out from some superior officer who perhaps directed “fix him up”. It is equally manifest that there is no allegation, let alone any finding of conspiracy or collusion, between the competent authority, the Assistant Engineers and the employee. The order of dismissal is, therefore, fit to be set aside on the findings recorded by the learned Inquiry Officer.
9. This, however, does not conclude matters. The contention advanced by the learned Counsel for the employer as to the delay attributable to the employee deserves serious consideration. The order of dismissal was passed on 20.10.1979, and the departmental appeal was filed on 20.12.1988. The earlier writ petition was dismissed on 23.5.1985, and in spite of the liberty to the employee to take recourse to the law, he took 3 years and 7 months to lodge the appeal.
10. Learned Counsel for the employer has relied on the relevant provisions of Bihar State Co-operative Marketing Union Ltd. Staff Regulation which prescribes a period of two months to prefer the appeal. We have given our thoughtful consideration to this objection. Various factors come to our mind. An ordinary employee like an Accountant must have felt rattled by the avalanche of adverse circumstances seeking to overwhelm him in a situation where the informant become the accused, was the person who surfaced the alleged irregularity, and instead became a scapegoat in the whirl-wind of criminal case as well as departmental proceeding. The trauma of being arrested, the financial constraints in pursuing two litigations simultaneously, must have left him mindless and penny-less, his mind must not have been working. His writ petition remained pending in this Court for two years and was ultimately dismissed on the ground of its maintainability, a ground the employee could not have foreseen, being a case of first impression. He must have felt relieved by the judgment of acquittal of 16.7.1986, whereby his honour had been vindicated and would have felt reminded of the order of dismissal, showing rays of hope. The physical running out of time seemingly stares in the face of the employee, but the totality of the circumstances impel us that justice should not be denied to him on the jejune ground of delay. We are reminded of the line of cases handed down by the Supreme Court from time to time that physical running out of time should not by itself be the sole determining factor in such cases. This is after all a court of justice, not a Court of discipline, and we must step in to redress the gross injustice meted out to a “small fry”. The physical running out of time may have a bearing on the question of relief to be granted to the employee, but cannot impede the course of justice. In the facts Page 1730 and circumstances of this case, we cannot allow the employee to suffer in a situation where he can not be held guilty on the findings of the learned enquiry officer.
11. Law is well settled that there is no absolute bar that a punished employee cannot approach this Court without exhausting the alternative remedy. This Court has been entertaining writ petitions at the instance of employees directly challenging departmental proceedings, and such petitioners are subjected to the constraints of writ jurisdiction. The petitioner on the earlier occasion took the risk of approaching this Court directly by subjecting himself to the constraints of judicial review. Therefore, the petitioner cannot necessarily be held guilty of approaching this Court directly. It is another matter that this Court held that the writ petition was not maintainable because the employer was not “State” within the meaning of Article 12 of the Constitution. That was a case of first impression and this Court for the first time decided to that effect.
12. There is yet another aspect of the matter which has a bearing on the question of delay. What seems to come in the way of the employee is the delay that has taken place from 23.5.1985 till the date the departmental appeal was filed. The same has really to be seen in the background of the judgment of acquittal of 16.7.1986 and dismissal of the Government Appeal on 17.5.1987. The authorities did not allow the employee peace and chased him up to the High Court. Even if his departmental appeal were disposed of prior to the conclusion of the criminal matter, there would not have been the question of his reinstatement which possibly arose with the judgment of acquittal and dismissal of the Government Appeal.
13. It would, therefore, not be a wise exercise of discretion to deprive him of full salary up to 17.5.1987. He will be entitled to full salary up to 17.5.1987. Delay really seems to operate against the employee after 17.5.1987. He will, therefore, be entitled to 50% of his salary from 17.5.1987 till the date of his death or superannuation, whichever would have been earlier. The claim, if any, for promotion is hereby rejected. In the peculiar facts and circumstances of the case, the appellants’ heirs and legal representatives shall not raise any grievance with respect to Contributory Provident Fund for the period after 20.10.1979, the date of dismissal. The employee shall be entitled to interest of six percent on all his dues from the date(s) the amount(s) became due, till the date of payment.
14. In the result, this appeal is allowed with costs quantified at Rs. 10,000/- which shall be paid along with the arrears of salary and interest. It goes without saying that the employee shall be entitled to the post-retirement benefits as if he had continued in service till the date of superannuation or the date of death, whichever would have been earlier, subject to the aforesaid condition with respect to contributory provident fund. The appellant shall be entitled to the benefit of the provisions of Section 89(1) of the Income Tax Act, the payment under the present judgment shall be deemed to have been made as occurring in the respective financial years, and tax at source, if needed, shall be accordingly made.
As prayed for by the learned Counsel for the appellants, the heirs and legal representative of the employee, the cheque(s) may be issued in the sole name of appellant No. 1 (Amrendra Narain Banker) with the undertaking that the remaining heirs shall not raise any objection on this count.