HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT APPEAL No.830 OF 2013 AND WRIT PETITION No. 23730 OF 2013 Dated 4th June, 2014.
Between S.Subba Rao (died) and ors of 2013 …..Petitioners in WP. No. 23730 S.Venmkata Durga Prasad and ors …….Appellants in WA.No. 830 of 2013 And Guntur District Cooperative Central Bank Ltd., Rep. by its General Manager, Guntur and anr.
….Respondents in both.
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT APPEAL No.830 OF 2013 AND WRIT PETITION No. 23730 OF 2013 COMMON JUDGMENT: ( per AM.J.) As the issues involved in the Writ Petition and Writ Appeal are interrelated, they were heard together and are being disposed of by this common judgment.
One Sri S.Subba Rao (since died) while working as a Manager in Chilakaluripeta Branch of the first respondent-Bank was charge sheeted on account of loss of funds to the tune of Rs.342.56 lakhs. The charges levelled against the said S. Subba Rao were held proved in the outstanding enquiry initiated against him and after following the due procedure, he was dismissed from service one day prior to his superannuation, i.e. on 29.1.2001. The appeal preferred by him ended in dismissal. Aggrieved by the same, he filed Writ Petition No. 11409 of 2001 before this Court. During the pendency of the Writ Petition, the delinquent employee, S. Subba Rao died and his legal representatives came on record. A learned single Judge of this Court allowed the said Writ Petition on the ground that the primary authority-first respondent without considering in the proper perspective the objections raised by the delinquent employee in the explanation submitted to the show cause notice passed the dismissal order and even the appellate authority-second respondent without considering the grounds raised in the appeal affirmed the decision of the primary authority and thereby set aside the dismissal order and directed the first respondent to re-consider the matter in detail and pass appropriate orders afresh in accordance with law. Aggrieved to the extent of remanding the matter and directing the first respondent to pass appropriate orders afresh, the legal heirs of the delinquent employee preferred the present Writ Appeal. And thereafter, pursuant to the direction of this Court in the aforesaid Writ Petition, the first respondent passed a detailed order dated 27.10.2011 reiterating the earlier stand of dismissal of the delinquent employee from service. Aggrieved thereby, the present Writ Petition is filed.
The core contention of the learned Counsel for the petitioners/appellants is that the learned single judge, having found that the action of the respondent authorities in passing the dismissal order is tainted with malafide, ought not to have remanded the matter for passing appropriate orders afresh and instead, ought to have directed for release of terminal benefits in favour of the legal representatives of the deceased employee. He further submitted that the subsequent order dated 27.10.2011 imposing punishment of dismissal from service with retrospective effect, that too against a dead person, is nonest in the eye of law.
The respondents filed counter supporting their action in initiating the proceedings against the delinquent employee.
Perused the record.
We see no force in the contentions advanced by the learned Counsel for the petitioners/appellants. It is not in dispute that an enquiry was initiated against the deceased delinquent employee while he was working as a Manager in the respondents-Bank and the charges levelled against him were held proved and pursuant thereto, a dismissal order was passed against him a day before his superannuation. The appeal preferred by him ended in dismissal. Thereafter he filed Writ Petition No. 11409 of 2001, wherein a learned single Judge of this Court allowed the said Writ Petition merely on the ground that the primary authority as well as the lower appellate authority have not applied their mind in considering the objections/grounds raised by the delinquent employee and mechanically passed the order, and thereby remanded the matter to the first respondent for passing appropriate orders afresh. It is appropriate to extract the relevant portion of the order, which reads as under:
“ It is not in dispute that the 1st petitioner retired from service on 31.01.2001 on attaining the age of superannuation. Admittedly the enquiry report was furnished to him along with show-cause notice on 27.1.2001 and he was asked to submit his explanation within 48 hours. It is also not in dispute that the impugned order of dismissal came to be passed on the same day on which the 1st petitioner’s explanation was received.
A perusal of dismissal order shows that except accepting the enquiry officer’s report dated 25.01.2001 in toto, the 1st respondent did not apply his mind to any of the objections raised in the 1st petitioner’s explanation. The way in which the whole proceedings were conducted makes it clear that the issue was pre-determined and the proceedings were concluded hurriedly to see that the 1st petitioner was punished before he laid down his office on attaining the age of superannuation. Even the Appeal was dismissed by the appellate authority mechanically without taking into consideration any one of the grounds raised in the Memorandum of Appeal.
It is apparent from the material available on record that the action of the respondents was mala fide and the impugned order was passed with the express purpose of depriving the 1st petitioner his retirement benefits. Moreover it is obvious that the orders of both the respondents 1 and 2 were passed without application of mind to the relevant factors. Both the respondents had also failed to assign proper reasons in support of their conclusions.
In the circumstances, there is no other option except to set aside the orders of both the 1st respondent and the 2nd respondent. Accordingly, the impugned orders are hereby set aside and the Writ Petition is disposed of with a direction to the 1st respondent to reconsider the matter in detail and pass appropriate orders in accordance with law as expeditiously as possible preferably within a period of three (3) months from the date of receipt of this order. No costs.”
From the above order, it is clear that the learned single Judge did not found fault in initiating the disciplinary proceedings against the delinquent employee. However, the learned single judge found fault in passing the dismissal order in a harried manner. Further, it was found that the first and second respondent authorities have not considered the objections raised in the explanation submitted to the show cause notice dated 27.1.2001 and grounds raised in the appeal respectively in the proper perspective, and thereby remanded the matter for de nova consideration of the matter and to pass appropriate orders afresh. Suffice to state, once the disciplinary proceedings are initiated, holding of enquiry is mandatory and if that is not done, it would amount to unjust enrichment of the concerned employee. In view thereof, we see no merit in the first contention of the learned Counsel for the appellants/petitioners.
Coming to the second aspect of the matter. From a perusal of the record, we find that after conclusion of the enquiry and passing of the dismissal order thereon, the delinquent employee died. He had been afforded with full opportunity of hearing in enquiry, which was held in accordance with rules. Further, pursuant to the order of this Court dated 4.2.2011 in Writ Petition No. 11409 of 2001, the respondent authorities have afforded full fledged opportunity to the legal representatives of the deceased employee and thereafter only the subsequent order of dismissal dated 27.10.2011 was passed.. Therefore, it is clear that principles of natural justice were not violated in any manner inasmuch as the delinquent employee was dismissed form service after conducting a proper enquiry. It is not a case where disciplinary proceedings were initiated after the demise of the delinquent employee. The disciplinary proceedings were initiated and concluded during the life time of the employee himself. The impugned proceedings were passed only in pursuance of the direction issued by this Court in Writ Petition No. 11409 of 2001. Therefore, it cannot be construed that the impugned proceedings were issued for the first time after the demise of the employee. In normal service jurisprudence, the offence/misconduct committed by an employee may automatically be dissolved on account of his death, however, in certain offences/misconduct alleged to have been committed by the employee during his service would not dissolve him of the liability due to his death. In a case where an employee is alleged to have misappropriated funds and died before conclusion of the enquiry, the legal representatives of the employee are entitled to defend the case and if it is found that any amount is due from the employee, the employer can recover the same from the estate left by the deceased employee. Similarly, if the misconduct is not proved, the legal representatives of the deceased employee are entitled to terminal benefits of the deceased employee. The effect of the proceedings initiated after the retirement of an employee is different from the proceedings that can be initiated for misconduct during the life time of the employee before his retirement. In cases of inquiry initiated during the life time of the employee before his retirement, the employer would be at liberty to complete the inquiry even after the death of the employee in the presence of the legal representatives of the deceased employee and can recover the loss from the retiral dues of the deceased employee. In view thereof, the contention advanced by the learned Counsel for the petitioner in regard thereto cannot be countenanced. We are of the considered opinion that in the inquiry initiated during the life time of the delinquent employee, he was given full-fledged opportunity to defend his case and even after his death during the pendency of the Writ Petition preferred by him, the legal representatives of the deceased employee were afforded with opportunity in the de novo proceedings pursuant to the order of this Court, and therefore, it is clear that the principles of natural justice were not violated in any manner. The learned Counsel for the petitioner has neither being able to show any illegality or infirmity in passing the order dated 27.10.2011 nor has argued anything apart from what has been stated above.
For the foregoing discussion, we see no merit in the Writ Appeal as well as Writ Petition, which are liable to be dismissed.
The Writ Appeal and Writ Petition are accordingly dismissed. In sequel thereto, the miscellaneous petitions pending consideration if any shall stand closed. There shall be no order as to costs.
JUSTICE ASHUTOSH MOHUNTA JUSTICE M. SATYANARAYANA MURTHY DATED 4th JUNE, 2014.
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