The West Bengal State … vs Paritosh Bagchi & Others on 19 October, 1995

Supreme Court of India
The West Bengal State … vs Paritosh Bagchi & Others on 19 October, 1995
Equivalent citations: 1995 SCC (6) 562, 1995 SCALE (6)83
Author: V K.
Bench: Venkataswami K. (J)
           PETITIONER:
THE WEST BENGAL STATE COOPERATIVEBANK LIMITED & OTHERS

	Vs.

RESPONDENT:
PARITOSH BAGCHI & OTHERS

DATE OF JUDGMENT19/10/1995

BENCH:
VENKATASWAMI K. (J)
BENCH:
VENKATASWAMI K. (J)
VERMA, JAGDISH SARAN (J)

CITATION:
 1995 SCC  (6) 562	  1995 SCALE  (6)83


ACT:



HEADNOTE:



JUDGMENT:

J U D G M E N T
K. Venkataswami. J.

Leave granted. Heard Counsel on both sides. This appeal
is preferred against the judgment and order dated 3.9.1993
passed in F.M.A.T. No. 1182 on the file of the High Court of
Calcutta.

The first respondent was in the service of the
appellant Bank. A charge-sheet was issued on 11.5.1981
against him calling upon the first respondent to show cause
against the charges brought against him. On receipt of reply
to the show cause notice a regular departmental enquiry was
held and the Enquiry officer submitted a report. Thereafter
the disciplinary authority accepting the enguiry report
issued a further show cause notice dated 13.8.1981 why the
punishment of dismissal should bot be imposed upon him in
the light of the enquiry report and findings thereon which
were accepted by him. It must be noted that alongwith this
notice, the copy of the enquiry report was also enclosed.

The first respondent challenged the issuance of second
show cause notice itself by filling a writ petition.
However, He withdrew the same as before the writ petition
could be taken up for hearing, the final order dismissing
the first respondent was passed by the Management.

The first respondent then challenged the order of
dismissal by moving the High Court under Article 226 of the
Constitution of India. A learned Single Judge of the High
Court by order dated 12.6.1986 set aside the enquiry
proceedings and consequently allowed the writ petition with
liberty to proceed against the first respondent afresh
according to law.

The appellants not satisfied with the crder of the
learned Single Judge preferred an appeal to the Division
Bench in F.M.A.T. No. 1834/1986. The Division Bench by
judgment and order dated 29.1.1987 modified the order of the
learned Single Judge by upholding the disciplinary
proceedings putto the state of issuance of second show cause
notice. The learned Judges observed as follows :-

“It would be open to the disciplinary
authorities to proceed afresh and to
decide whether a second show cause
notice should be issued upon the writ
petitioner against the penalty which may
be proposed to be imposed. In case such
show cause notice is issued, the writ
petitioner would be at liberty to submit
his explanation. Upon consideration of
the relevant matters, the disciplinary
authorities will pass orders in
accordance with law.”

Inasmuch as a copy of the enquiry report was available
with the petitioner, the disciplinary authority after
referring the above said Division Bench judgment called upon
the first respondent to submit his explanation in writing
within one month from the date of receipt thereof. Inspite
of the reminders given to the first respondent, he did not
choose to give to the first respondent, he did not choose to
give any explanation dealing with the findings rendered by
the enquiry officer accepted by the disciplinary authority.
On the other hand, the firs respondent treated the show
cause notices as not in conformity with the direction given
by the Division Bench of the High Court while disposing of
F.M.A.T. 1834 of 1986. After duly considering the
representations, authority imposed a penalty of dismissal by
order dated 7.3.1989.

The first respondent again challenged the order of
dismissal by filing a writ petition and the learned Single
Judge found that full opportunities were given to the first
respondent to offer any explanation he wanted to offer and
he was satisfied with the reasonable opportunity given to
the first respondent in the light of the observarions of the
Division Bench referred to above. Consequently, he dismissed
the writ petition. The first respondent aggrieved by the
dismissal of the writ petition preferred F.M.A.T. No. 1182
of 1992.

The learned Judges after referring to the observations
of the previous Division Bench held as follows :-

“There is nothing on record that the
authority concerned had taken a decision
pursuant to the liberty given by the
earlier Division Bench with regard to
whether second show cause notice
requirement of giving show cause notice,
if this is a part of the principles of
natural justice cannot be curtailed or
abridged by any order passed by the
Court… As we are of the view that the
order of punishment was passed without
issuing any second show cause notice,
the order of punishment dated 7th March,
1989 passed by the disciplinary
authority cannot stand and accordingly,
the order of the learned trial Judge is
set aside.”

The Division Bench, however, gave liberty to the
appellants to proceed afresh only after giving the second
show cause notice against the proposed punishment.

Learned counsel for the appellant after taking to
through the paper book submitted that factually after
disposal of the appeal by the Division Bench on Bench on
earlier occasion, show cause notices were given to the first
respondent and it is first respondent who failed to avail
the opportunities given to him. Therefore, according to
learned counsel, the assumption of the learned Judges that
there was no further show cause notice before the impugned
punishment was imposed was not correct and therefore, the
order is liable to be set aside.

Learned counsel appearing for the first respondent
though initially denied that the first respondent was ever
supplied with the report of the enguiry officer, subse-
quently admitted the supply of the report of the enquiry
officer. However, he contended that the direction given by
the Division Bench on the earliel occasion. We do not think
that we can accept this contention of the learned counsel
for the first respondent. We have see factually the first
respondent was supplied with the copy of the enquiry report.
He was called upon to submit his explanation in the light of
earlier Division Bench judgment. The first respondent
instead of submitting his explanation found fault with the
form of notice and raised contentions not relevant to the
issued.

In the circumstances and on facts, we are satisfied
that the first respondent was given reasonable opportunity
before imposing the penalty of dismissal and the Division
Bench was not justified in setting aside the order of
dismissal on the sole ground that there was no second show
cause notice issued before the impugned order was passed.

Though the question whether second show cause notice
was at all necessary having regard to the dated of dismissal
order and having regard to pronouncements of this Court’s
judgment in Managing Director, ECIL, Hyderabad and others
vs. B. Karunakar & Others
1993 (4) SCC 727 was raised and
argued, we do not propose to go into it in view of the fact
that factually a second show cause notice was give and the
first respondent was not diligent enough to avail the
opportunity.

In the result, the appeal is allowed, the impugned
judgment and order of the Division Bench dated 3.9. 1993 is
set aside and that of the learned Single Judge is restored.
However, there will be no order as to costs.

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