Sanjib Banerjee JUDGMENT
Sanjib Banerjee, J.
The Judgment of the Court was delivered by:
1. The employer and the employee are both in appeal from the order disposing of the writ petition. The order impugned upholds the challenge to the order of dismissal passed in the disciplinary proceedings but there is a sting in the tail as it permits de novo enquiry proceedings to be launched on the basis of the charge sheet. The employer insists that the writ petition should not have been entertained as it was not maintainable and there is no discussion in the impugned order in that regard. The employer says that there was nothing remiss about the decision-making process and even if it is held that the writ petition was maintainable the order impugned should otherwise be set aside. The employee claims that considering the basis of his challenge which has been upheld, there was no occasion for a de novo enquiry to be launched.
2. The employer is a society registered under the West Bengal Co-operative Societies Act, 1983 and is engaged in the banking business. The writ petitioner joined as a clerk in the cooperative bank in 1965 and, at the time of the alleged misconduct in 1998, was posted at the Chetla branch as its manager. In the writ petition it was claimed that the bank was governed by the provisions of the said Act of 1983 and the rules framed there under. The writ petition alluded to the bye-laws of the bank.
3. The articles of charge speak of an incident during the employee's absence during working hours on September 26, 1998, the last working day before six days of Puja holidays. On April 26, 1999, the substance of imputation of misconduct and the statements in support thereof were forwarded to the employee. The three relevant articles of charge, being the second, third and fourth, provided as follows:
Article of Charge - II
That the said Shri Bhabani Adhikary functioning as the Branch Manager, Chetla Branch of the West Bengal State Co-operative Bank Ltd. left the Branch at 15.00 hours on 26.09.98 without handing over the charge of the Branch to the Officer placed as his substitute on acting arrangement basis by the Managing Director of the Bank under Order No. HO/MD/3332 dated 26.09.98 while leaving the Master Key which was already with the Cashier of the Branch and he came back to office at 19.30 hours only on being repeatedly called over phone and ultimately made over charge at 21.00 hours.
The above act of the Shri Bhabani Adhikary constitutes misconduct in terms of Rule 43 of the Service Rule of the Bank.
Article of Charge - III
That the said Shri Bhabani Adhikary while functioning as the Branch Manager, Chetla Branch of the West Bengal State Co-operative Bank Ltd. was the joint custodian of cash and other valuables of the Bank with the Cashier. The day's cash balance after the close of transaction on 26.09.98 according to the Cash Balance Register was Rs. 34,11,838.92 but Shri Bhabani Adhikary as the joint custodian of cash could only produce Rs. 33,11,838.92 which is short of the day's cash balance by Rs. 1,00,000.00.
The above act of the Shri Bhabani Adhikary in violation of office order issued under Memo No. Admn.&Per/6201 dated 24/26.09.1998 stipulating the powers and duties of Branch Managers constitutes misconduct in terms of Rule 46 of the Service Rules of the Bank.
Article of Charge - IV
That the said Shri Bhabani Adhikary functioning as the Branch Manager, Chetla Branch of the Bank in order to cover up the shortage tendered a letter as Chairman of Pranabananda Co-operative Bank that the said Pranabananda Co-operative Bank Ltd. had intended to deposit Rs. 22,75,000/- in its account at Chetla Branch on 26.09.98 but had actually tendered Rs. 21,75,000/- and he insisted on correcting the pay-inslip at the Bank's end without making arrangement for tendering the amount of Rs. 1,00,000/- as yet.
The above act of Shri Bhabani Adhikary const........