Madhya Bharat Gramin Bank vs Raj Bahaddur Khare
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-JBP:86295
1 WA-1277-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE PRADEEP MITTAL
ON THE 27th OF OCTOBER, 2026
WRIT APPEAL No. 1277 of 2012
CNR No.: MPHC010473492012
MADHYA BHARAT GRAMIN BANK AND ANR
Versus
RAJ BAHADDUR KHARE AND ANR
Appearance:
Shri Rajesh Maindiretta - Learned Counsel with Ms. Udita Maindiretta, Shri
Dev Kumar Ramchandani and Shri Yuvraj Jain - Advocates for the
petitioners.
Shri Shobha Menon - Senior Advocate with Shri Rahul Choubey - Advocate
for the respondents.
WITH
WRIT PETITION No. 3439 of 2002
CNR No.: MPHC010131462002
RAJ BAHADUR KHARE
Versus
MADHYANCHAL GRAMIN BANK
Appearance:
Parties through their counsel.
WRIT PET. (SERVICE) No. 651 of 2003
CNR No.: MPHC010446162003
RAJ BAHADUR KHARE
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 27-10-2026
17:19:18
NEUTRAL CITATION NO. 2026:MPHC-JBP:86295
2 WA-1277-2012
Versus
MADHYANCHAL GRAMEEN BANK AND ANR
Appearance:
Parties through their counsel.
WRIT PET. (SERVICE) No. 2968 of 2003
CNR No.: MPHC010554262003
RAJ BAHADUR KHARE
Versus
MADHYANCHAL GRAMEEN BANK AND ANR
Appearance:
Parties through their counsel.
WRIT PET. (SERVICE) No. 2969 of 2003
CNR No.: MPHC010554272003
RAJ BAHADUR KHARE
Versus
MADHYANCHAL GRAMIN BANK AND ANR
Appearance:
Parties through their counsel.
WRIT PET. (SERVICE) No. 1947 of 2004
CNR No.: MPHC010100992004
RAJ BAHADUR KHARE
Versus
MADHYANCHAL GRAMIN BANK AND OTHERS
Appearance:
Parties through their counsel.
WRIT PETITION No. 6508 of 2005
CNR No.: MPHC010303072005
RAJ BAHADUR KHARE
Versus
MADHYANCHAL GRAMIN BANK AND OTHERS
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 27-10-2026
17:19:18
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3 WA-1277-2012
Appearance:
Parties through their counsel.
WRIT PETITION No. 6509 of 2005
CNR No.: MPHC010303082005
RAJ BAHADUR KHARE
Versus
MADHYANCHAL GRAMIN BANK AND ANR
Appearance:
Parties through their counsel.
WRIT PETITION No. 13903 of 2006
CNR No.: MPHC010375002006
RAJBAHADUR KHARE
Versus
MADHYANCHAL GRAMEEN BANK AND OTHERS
Appearance:
Parties through their counsel.
WRIT PETITION No. 13904 of 2006
CNR No.: MPHC010375012006
RAJBAHADUR KHARE
Versus
MADHYANCHAL GRAMEEN BANK AND ANR
Appearance:
Parties through their counsel.
WRIT PETITION No. 13906 of 2006
CNR No.: MPHC010375032006
RAJBAHADUR KHARE
Versus
MADHYANCHAL GRAMEEN BANK AND OTHERS
Appearance:
Parties through their counsel.
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 27-10-2026
17:19:18
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4 WA-1277-2012
ORDER
Per: Justice Vivek Rusia
The present writ appeal has been preferred by the appellants, Madhya
Bharat Gramin Bank and its Board of Directors, under Section 2(1) of the
Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal)
Adhiniyam, 2005, assailing the order dated 26.09.2012 passed by the learned
Single Judge in W.P. No. 5823 of 2006 (S), whereby the writ petition filed
by respondent No. 1, Raj Bahaddur Khare, was allowed, the orders passed by
the Disciplinary Authority and the Appellate Authority removing him from
service were quashed, and his reinstatement with all consequential benefits
was directed.
Facts of the case, in short, are as under :-
2. The respondent was serving as an Officer in Management Grade
Scale-I of the appellant Bank and was posted as Branch Manager at the
Chandavani Branch. According to the appellants, while working at the said
branch, the respondent lodged an FIR dated 28.09.2003 against the then
Chairman of the Bank, Shri S.K. Jain, the General Manager, Shri S.
Agnihotri, Senior Manager (Staff), Shri S.C. Jain, and Senior Manager, Shri
Prabhakar Shukla. It was alleged in the FIR that the aforesaid officers had
been harassing him on account of cases instituted by him before the High
Court in relation to his service matters and that, on 27.09.2003, they had
visited his residence and threatened him with suspension, transfer to a remote
branch, removal from service and false implication in a criminal case unless
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he withdrew the pending cases. The police did not find the allegations
substantiated and submitted a closure report. The respondent subsequently
filed a private complaint before the Judicial Magistrate First Class, which
was also dismissed by order dated 01.08.2005, against which he preferred a
criminal revision before the Court of the District and Sessions Judge,
Tikamgarh.
3. According to the appellant, the respondent had repeatedly used
indecent, abusive and unparliamentary language against senior officers of the
Bank and had failed to comply with the lawful instructions and directions
issued by the higher authorities. According to them, the respondent had
earlier been served with charge-sheets on seven occasions and had been
subjected to minor punishments; however, his conduct allegedly did not
improve. In these circumstances, a charge-sheet dated 28.04.2004 was issued
to him, containing nine charges. As stated by the appellants, Charge No. 1
related to the lodging of the FIR against the then Chairman and other
officers, whereas the remaining eight charges concerned other incidents
unrelated to the said FIR.
4. Instead of initially submitting a reply to the aforesaid charge-sheet,
the respondent addressed a letter dated 04.05.2004 to the Bank, which,
according to the appellants, contained objectionable language against the
Chairman and raised demands for documents on the basis of assumptions
and presumptions. The appellants alleged that such conduct amounted to
gross indiscipline and violated Regulation 19 of the applicable Service
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Regulations. The respondent thereafter submitted his reply to the charge-
sheet on 18.09.2004, denying the allegations and setting out his defence. On
account of the subsequent misconduct in the letters, a second charge-sheet
dated 28.09.2004 was issued to him, containing two additional charges.
According to the appellants, the respondent did not submit any reply to the
second charge-sheet.
5. A common departmental enquiry was thereafter conducted in
respect of both charge-sheets. The appellants maintained that the respondent
was afforded due opportunity to defend himself during the enquiry
proceedings. The Enquiry Officer submitted his report on 11.10.2005,
holding all charges in the first charge-sheet, except Charges No. 2(b) and 5,
to be proved. Both charges contained in the second charge-sheet were also
found proved. The Chairman, acting as the Disciplinary Authority,
considered the enquiry proceedings and recorded his conclusions regarding
the charges against the respondent.
6. The enquiry report, along with the comments of the Disciplinary
Authority, was forwarded to the respondent through a show-cause notice
dated 10.11.2005. He was called upon to submit his explanation within ten
days, and the penalty of removal from service without disqualification for
future employment was proposed. The respondent submitted his explanation
on 02.12.2005. According to the appellants, he reiterated the defence already
taken during the enquiry and did not raise any fresh ground warranting a
different conclusion.
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MAMTANI
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7. Upon consideration of the explanation submitted by the respondent
and the record of the departmental enquiry, Shri Jain, acting as the
Disciplinary Authority, imposed the proposed punishment of removal from
service by order dated 08.12.2005. Aggrieved by the said order, the
respondent preferred an appeal before the Board of Directors of the Bank.
The writ petitioner was afforded an opportunity of personal hearing before
the Appellate Authority, during which he requested that an opportunity be
granted to him to improve his conduct and sought pardon. The Board of
Directors considered the record of the case and the respondent’s defence and
rejected the appeal in its meeting held on 29.03.2006. The decision was
communicated to the respondent by letter dated 04.04.2006.
8. Thereafter, the respondent instituted W.P. No. 5823 of 2006 before
the High Court, challenging the orders passed by the Disciplinary Authority
and the Appellate Authority interalia on the ground that the then Chairman,
Shri S.K. Jain, was personally biased against him because he had lodged a
criminal complaint against the Chairman and other senior officers of the
Bank. It was contended that, in view of the allegations made against Shri
Jain and the pending dispute between them, he could not have issued the
charge-sheet, participated in the disciplinary process as one of the witnesses,
and later acted as the Disciplinary Authority in the matter.
9. The appellants/bank opposed the aforesaid legal ground by
contending that, under the applicable statutory framework and Service
Regulations, the Chairman was the competent Disciplinary Authority for
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officers of the Bank. They relied upon the Regional Rural Banks Act, 1976,
and the Bundelkhand Kshetriya Gramin Bank (Officers and Employees)
Service Regulations, 2001, framed under Section 30 of the Act. According to
the appellants, Regulation 5(1) designated the Chairman as the appointing
authority for Group A officers, and the Chairman was the only authority
competent to exercise the relevant disciplinary powers in respect of the
respondent.
10. The appellants further contended before the learned Single Judge
that, in the absence of any other authority empowered under the Act or the
Regulations to act as the Disciplinary Authority, the doctrine of necessity
was applicable. They contended that neither the Act nor the Regulations
contained any provision authorising the Board of Directors to appoint an ad
hoc Disciplinary Authority or delegate the Chairman’s disciplinary powers to
another authority. It was, therefore, argued that the departmental proceedings
could not be invalidated merely because the Chairman was also the person
against whom the respondent had made allegations.
11. The learned Single Judge, however, accepted the petitioner’s
objection regarding bias and held that the Chairman ought not to have issued
the charge-sheets or taken further action in the departmental enquiry in view
of the allegations made against him. The learned Single Judge also held that
the Board of Directors ought to have considered the possibility of appointing
an ad hoc Chairman or Disciplinary Authority to conduct the proceedings.
On this basis, the orders passed by the Disciplinary Authority and the
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MAMTANI
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Appellate Authority were quashed, and the respondent was directed to be
reinstated in service with all consequential benefits.
12. Aggrieved by the order dated 26.09.2012, the Bank and its Board
of Directors preferred the present writ appeal in which, while issuing notice,
the order of the Single Bench was stayed. The principal challenge in the
appeal is that the learned Single Judge erred in rejecting the applicability of
the doctrine of necessity, in holding that an ad hoc Disciplinary Authority
could have been appointed in the absence of any enabling provision, and in
interfering with the disciplinary orders on the ground of bias. The appellants
accordingly seek setting aside of the impugned order and dismissal of the
respondent’s writ petition.
Submissions on Behalf of the Appellants
13. Shri Rajesh Maindiretta, learned counsel for the appellants,
submitted that the impugned order passed by the learned Single Judge is
contrary to law and the material available on record. It was contended that
the learned Single Judge erred in allowing the writ petition and directing
reinstatement of the respondent with all consequential benefits, despite the
departmental enquiry having been conducted against him and the charges of
misconduct having been found proved.
14. Learned counsel for the appellants further submitted that the
respondent had repeatedly indulged in acts of indiscipline, used indecent and
unparliamentary language against senior officers of the Bank and disobeyed
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MAMTANI
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the lawful instructions and directions issued by the higher authorities. It was
contended that the respondent had previously been issued charge-sheets on
seven occasions and had also been subjected to minor punishments; however,
despite the opportunities granted to him to improve his conduct, he
continued to indulge in similar acts of misconduct. In such circumstances,
the Bank was justified in initiating disciplinary proceedings against him.
15. It was further submitted that the charge-sheet dated 28.04.2004
contained nine charges, of which Charge No. 1 related to the FIR lodged by
the respondent against the then Chairman and other senior officers of the
Bank, while the remaining charges concerned separate incidents of alleged
misconduct. A subsequent charge-sheet dated 28.09.2004 contained two
additional charges arising out of the respondent’s conduct. Learned counsel
contended that the charges were not confined to the dispute between the
respondent and the then Chairman, but included several other acts of
misconduct, many of which were based on documentary material.
16. Learned counsel for the appellants submitted that a common
departmental enquiry was conducted in respect of both charge-sheets and
that the respondent was afforded due opportunity to present his defence. The
Enquiry Officer, after considering the material available on record, submitted
his report dated 11.10.2005, holding all charges in the first charge-sheet,
except Charges No. 2(b) and 5, to be proved and finding both charges in the
second charge-sheet proved. It was contended that the respondent was
subsequently supplied with the enquiry report along with the comments of
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the Disciplinary Authority and was given an opportunity to submit his
explanation before the final order was passed.
17. It was further submitted that the Disciplinary Authority considered
the explanation submitted by the respondent on 02.12.2005 and, imposed the
penalty of removal from service by order dated 08.12.2005. The
respondent’s departmental appeal was also considered by the Board of
Directors after affording him an opportunity of personal hearing. However,
the appeal was rejected on 29.03.2006 and the decision was communicated
on 04.04.2006. Learned counsel contended that the disciplinary and appellate
orders were passed after consideration of the relevant record and did not
warrant interference by the writ court.
18. The principal contention raised on behalf of the appellants was
that the learned Single Judge erred in accepting the respondent’s objection
regarding bias on the part of the then Chairman, Shri S.K. Jain. It was
submitted that the Chairman was the competent Disciplinary Authority under
the applicable Service Regulations and was the only authority empowered to
initiate and conduct disciplinary proceedings against officers of the Bank.
Merely because the respondent had lodged an FIR against the Chairman and
other officers, the disciplinary proceedings could not automatically be
rendered invalid, particularly when the charges included several allegations
of misconduct independent of the said FIR.
19. Learned counsel further submitted that the appellant Bank was
constituted under the Regional Rural Banks Act, 1976, and that the
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applicable Service Regulations had been framed in exercise of the powers
conferred by Section 30 of the Act. Referring to Regulation 5(1) of the
Bundelkhand Kshetriya Gramin Bank (Officers and Employees) Service
Regulations, 2001, it was contended that the Chairman was the appointing
authority in respect of Group A officers, including the respondent.
20. Learned counsel also submitted that the doctrine of necessity was
squarely applicable to the facts of the case. It was submitted that, where the
statutory framework vests disciplinary powers in a particular authority and
no alternative authority is empowered to exercise those powers, the
proceedings cannot be invalidated merely because the designated authority is
alleged to be personally interested in the matter. The appellants contended
that the Chairman had no legally permissible alternative but to exercise the
powers vested in him under the applicable Regulations.
21. It was further submitted that the learned Single Judge erred in
holding that the Board of Directors ought to have appointed an ad hoc
Disciplinary Authority to conduct the enquiry. According to the appellants,
neither the Regional Rural Banks Act, 1976, nor the applicable Service
Regulations conferred any power upon the Board of Directors to appoint an
ad hoc Disciplinary Authority or to delegate the disciplinary powers vested
in the Chairman. In the absence of an enabling provision, the Board could
not have nominated another authority to perform the functions assigned to
the Chairman under the statutory framework.
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MAMTANI
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22. Learned counsel also contended that the learned Single Judge
failed to appreciate the distinction between the functioning of the Board of
Directors as a collective body and the exercise of disciplinary powers by the
Chairman as an individual statutory authority.
23. Learned counsel further submitted that the principles of natural
justice, though fundamental, are subject to the doctrine of necessity in
circumstances where the competent authority cannot be substituted by
another authority under the governing law. Reliance was placed upon the
decision of the Supreme Court in the case of "State of Uttar Pradesh v. Sheo
Shanker Lal Srivastava, [ (2006) 3 SCC 276]", in support of the contention
that the doctrine of necessity operates as an exception to the general rule that
no person should be a judge in his own cause.
24. It was also contended that the learned Single Judge failed to
consider that most of the charges were founded upon documentary material
and admitted facts, leaving little scope for the Disciplinary Authority to
arrive at a different conclusion. According to the appellants, the respondent
had not demonstrated that any actual prejudice had been caused to him
merely because the proceedings were initiated and conducted by the then
Chairman. It was, therefore, argued that the entire departmental proceedings
ought not to have been set aside on the ground of apprehended bias.
25. Learned counsel additionally submitted that the ultimate order of
punishment was passed by the succeeding Chairman after consideration of
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the material on record. It was contended that the matter was thereafter
independently examined by the Board of Directors in its capacity as the
Appellate Authority. According to the appellants, the involvement of the
succeeding Chairman and the consideration of the respondent’s appeal by the
Board demonstrated that the final decision was not merely the consequence
of the personal dispute between the respondent and the former Chairman.
26. It was further submitted that the learned Single Judge ought to
have considered the respondent’s past conduct and the seriousness of the
misconduct alleged against him while examining the legality of the
punishment. In these circumstances, the penalty imposed upon the
respondent could not have been interfered with merely on a technical ground,
particularly when the departmental enquiry had resulted in findings against
him on several charges.
27. On the aforesaid grounds, learned counsel for the appellants
prayed that the writ appeal be allowed, the order dated 26.09.2012 passed by
the learned Single Judge in W.P. No. 5823 of 2006 (S) be set aside, and the
writ petition filed by the respondent be dismissed.
Submissions on Behalf of Respondent
28. Mrs. Shibha Menon, learned senior counsel for the respondents,
submitted that the departmental proceedings were vitiated by bias on the part
of the then Chairman, Shri S.K. Jain. It was contended that the respondent
had lodged an FIR against the Chairman and other senior officers of the
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Bank, alleging harassment and threats on account of the service-related cases
instituted by him before the High Court. In view of the allegations made
against him, the Chairman could not have acted as the Disciplinary
Authority in proceedings arising against the respondent.
29. It is further submitted that the Chairman’s participation in the
disciplinary proceedings gave rise to a reasonable apprehension of bias and
was inconsistent with the settled principle that no person should be a judge in
his own cause. The objection was not merely to the initiation of disciplinary
proceedings but also to the Chairman issuing the charge-sheets and taking
further action in the departmental enquiry despite his being the person
against whom the respondent had made allegations.
30. Learned Senior Counsel contended that the disciplinary
proceedings could not be sustained merely on the ground that the Chairman
was the authority designated under the Service Regulations. The issue, as
reflected in the challenge accepted by the learned Single Judge, was whether
the statutory position of the Chairman could override the requirement of an
impartial disciplinary process when the Chairman himself had a personal
interest in the matter.
31. It is also contended that the learned Single Judge, while accepting
the objection regarding bias, held that the Board of Directors ought to have
considered appointing an ad hoc Chairman or Disciplinary Authority to
conduct the proceedings. Thus, the respondent’s challenge succeeded on the
ground that the disciplinary process had not been conducted by an authority
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free from the apprehension of bias and that an alternative arrangement ought
to have been considered.
32. Learned Senior Counsel lastly submitted that the learned Single
Judge, in view of the aforesaid findings, quashed the orders passed by the
Disciplinary Authority and the Appellate Authority and directed the
respondent’s reinstatement in service with all consequential benefits. It is
therefore prayed that the appeal is devoid of merits and deserves to be
dismissed.
Heard the learned counsel for the parties and perused the record.
33. Admittedly, the learned writ court has allowed the writ petition
on technical grounds that Shri Jain, against whom the writ petitioner had
made allegations, should not have acted as a Disciplinary Authority in his
own cause. He was the complainant and was inducted as a witness in the
departmental enquiry against the writ petitioner. The Chairman happens to
be a Disciplinary Authority under the applicable Act and Rules, coupled with
the fact that he was the complainant and witness, the writ court has rightly
held that he should not have passed the order of punishment. He did not
explore any other ways and possibilities to keep himself away from the
disciplinary proceedings against the petitioner.
34. Shri Maindiretta, learned counsel submits that the Chairman is
the only Disciplinary Authority and his powers cannot be delegated to
others. Therefore, under the principle of the doctrine of necessity, Shri Jain
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had no option but to pass an order of punishment. In support of his
contention, Shri Maindiretta has placed reliance on a judgment passed by the
Apex Court in the case of State of U.P. Vs. Sheo Shanker Lal Shrivastava
and others, AIR 2003 SC 276, wherein in paragraphs 12, 16 & 19 it has been
held as under:-
"12. It is not in dispute that the Lok Ayukta was the disciplinary authority. The
power to impose punishment on the appellant vested only in him. When the Lok
Ayukta appointed one Shri S.K. Arora, a retired Director of Defence Estate, an
objection thereto was taken by the appellant himself stating that no person from
outside should be appointed as the inquiry officer. In the aforementioned situation,
the Lok Ayukta had no other option but to take upon himself the burden of holding
the departmental proceedings. The appellant, therefore, cannot be permitted to raise
any contention that the disciplinary proceeding should have been conducted by some
other officer. It has not been contended that any other officer working in the office
of the Lok Ayukta was available for conducting such enquiry.
xxxxxxx
16. Referring to the doctrine of necessity, Sir William Wade in his Administrative
Law stated:
"But there are many cases where no substitution is possible, since
no one else is empowered to act. Natural justice then has to give
way to necessity; for otherwise there is no means of deciding and
the machinery of justice or administration will break down."
It was further stated:
"In administrative cases the same exigency may arise. Where the
statute empowers a particular minister or official to act, he will
usually be the one and only person who can do so. There is then no
way of escaping the responsibility, even if he is personally
interested. Transfer of responsibility is, indeed, a recognised type
of ultra vires. In one case it was unsuccessfully argued that the
only minister competent to confirm a compulsory purchase order
for land for an airport had disqualified a himself by showing bias
and that the local authority could only apply for a local Act of
Parliament."
xxxxxxxx
19. In the aforementioned situation, the Lok Ayukta had no other option but to
proceed with the inquiry. Despite the fact that he was the disciplinary authority
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himself, as well as a witness, he had no other option but to inquire d into the charges
against the appellant. Furthermore the appellant did not deny or dispute, as noticed
hereinbefore, the recovery of the documents from the almirah. In that view of the
matter, it was for the appellant, who had knowledge about the documents and which
had been kept by him in the almirah, to show that as to how he had dealt with the
same. He being the Private Secretary was a man of confidence. He was bound to
follow the prevailing practice. It was his duty to place all the complaints and letters
received from other departments before the Lok Ayukta. The office of a Lok Ayukta
is of great importance. People approach the Lok Ayukta with various grievances.
They require urgent enquiry. It is not difficult to presume that only because such
complaints were received, a practice developed that no almirah should be kept under
lock and key. The appellant must be presumed, to have knowledge thereabout.
Despite the same he had put his almirah under lock and key. He refused to hand over
the key when called upon to do so. He did not cross-examine the only witness who
was available. He also did not examine himself. He did not examine any defence
witness. He did not show any remorse and in that view of the matter, in the peculiar
facts and circumstances of the case, we are of the opinion that it cannot be said that
the order of punishment passed by the Lok Ayukta suffered from any infirmity."
35. Mrs. Menon, learned senior counsel for the respondent, replied
that the appellants/Bank is headed by the Board of Directors. If Shri S.K.Jain
could not have acted as a disciplinary authority, then any of the Board
members could have delegated the powers of Disciplinary Authority to any
of the directors.
36. The main allegations against the petitioner were with regard to
his indisciplined behaviour and insubordination and making of allegations
against Shri S.K.Jain, the then Chairman. The petitioner lodged an FIR
against Shri S.K.Jain and other officers. Shri S.K.Jain, being Chairman and
Disciplinary Authority, can not be the judge of his own cause. Apart from
that, Shri Jain himself issued a show-cause notice dated 10.11.2005 to the
petitioner. Reply to the show-cause notice was placed before another Officer
(Shri O.P.Tang), who has passed the order of punishment dated 08.12.2005.
Therefore, the doctrine of necessity cannot be taken as a shield to justify
illegalities done by Shri Jain. Shri O.P.Tang accepted the comments given
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and observations prepared by Shri S.K.Jain. Therefore, there was a serious
violation of fundamental principles of natural justice. The learned writ court
has rightly set aside the order of the disciplinary authority dated 08.12.2005
as well as the order of the appellate authority, with a direction to reinstate the
petitioner with all consequential benefits.
37. The appellant/Bank was constituted under the Regional Rural
Banks Act, 1976, and the applicable Service Regulations had been framed in
exercise of the powers conferred by Section 30 of the Act. Under Regulation
5(1) of the Bundelkhand Kshetriya Gramin Bank (Officers and Employees)
Service Regulations, 2001, the Chairman is the appointing authority in
respect of Group-A officers, including the respondent. As held above, in the
given situation and circumstances Mr. Jain did not explore any other solution
to deal with this situation. Section 15 of the Act of 1976 provides that the
Board of Directors may constitute such committees, whether consisting
wholly of directors or wholly of other persons or partly of directors and
partly of other persons, as it may think fit, for such purposes as it may
decide. Section 15 of the Act being relevant is reproduced below:-
"15. Committees of Board.—The Board may
constitute such committees, whether
consisting wholly of directors or wholly of
other persons or partly of directors and partly
of other persons, as it may think fit, for such
purposes as it may decide."
Hence, the matter could have been placed before the Board to
constitute a committee to deal with the petitioner's disciplinary matter. Even
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otherwise, the guidance from the Central Government could have been
obtained under Sections 24 and 31 of the Act of 1976, which are reproduced
below:-
"24. Power of Central Government to give directions. —
(1) A Regional Rural Bank shall, in the discharge of its
functions, be guided by such directions in regard to
matters of policy involving public interest as the
Central Government may, after consultation with the
Reserve Bank, give.
(2) If any question arises as to whether any such
direction relates to a matter of policy involving public
interest, the decision of the Central Government thereon
shall be final.
31. Removal of difficulties.—If any difficulty arises in
giving effect to the provisions of this Act, the Central
Government may make such order, not inconsistent
with the provisions of this Act, as may appear to it to be
necessary for the purpose of removing the difficulty:
Provided that no such order shall be made after the
expiry of a period of five years from the
commencement of this Act."
38. As argued by learned counsel for the appellant, under the
Doctrine of Necessity, Mr. Jain, being the Chairman of the Bank, had no
option but to take disciplinary action against the petitioner despite him being
personally involved in it. In such a situation, by applying the doctrine of
necessity, Mr. Jain should have requested the Board to form a committee to
take disciplinary action against the petitioner or could have obtained the
guidance or order from the Central Government under sections 24 and 31.
The doctrine of necessity should have been applied or invoked in favour of
the petitioner rather than the employer to meet the ends of justice. A similar
view has been taken by the Apex Court in the matter of Amar Nath
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Choudhari Vs Braithwaite and Co. Ltd. reported in (2002) SCC 290:-
"7. Learned counsel appearing for the
respondent, however, pressed into service the
"doctrine of necessity" in support of his
contention. He contended that the rule against
bias is not available when, under the
Regulations framed by the Company, the
disciplinary authority who happened to be the
Chairman-cum-Managing Director of the
Company was required to preside over the
meeting of the Board and, therefore, the then
Chairman-cum-Managing Director of the
Company was not disqualified to preside over
and participate in the meeting of the Board
which dismissed the appeal of the appellant.
We find no merit in the argument. Rule 3(d)
of the Company's Conduct, Discipline and
Appeal Rules (in short "CDAR") defines
"Board" in the following terms:
"Board means the proprietors of the
Company and includes, in powers, any
committee Board/management or any officer
of the Company to whom the Board delegates
any of its powers."
8. In view of the aforesaid definition of the
expression "Board", the Board could have
constituted a committee of the
Board/management or any officers of the
Company by excluding the Chairman-cum-
Managing Director of the Company and
delegated any of its powers, including the
appellate power, to such a committee to
eliminate any allegation of bias against such
an Appellate Authority. It is, therefore, not
correct to contend that the rule against bias is
not available in the present case in view of
the "doctrine of necessity". We are, therefore,
of the view that reliance on the doctrine of
necessity in the present case is totally
misplaced."
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39. The Division Bench of this Court in the case of Nandkishore Vs
Commissioner, Jabalpur Division reported in AIR 1961 MP 932, has held as
under:-
"Having heard the counsel, we are clearly of opinion that this
petition must be allowed for the reason that the petitioner was
denied a reasonable opportunity of defending himself. Before we
consider that aspect of the matter, we may notice two other points
canva-ssed in support of the petition. It was urged, we think with
much justification, that the Collector, who subse-quently appeared
as a witness in the enquiry on the basis of facts, which came to his
knowledge before its commencement, could not have dealt with it
at all. In our opinion, the Collector should have realised from the
start that he was likely to be a witness in the enqui-ry and should
have therefore refrained from function-ing as the authority
competent to award punishment, as he actually did between 10
February 1959 and 22 August 1959. By acting in that manner, he
clearly violated the rules of natural justice and disregarded all
canons of fair play. However, this manifest infraction of the rules
ceased to be material when it was subse-quently realised and
rectified by sending the enquiring officer's report to the
Commissioner for determining the petitioner's delinquency and for
punishing him, if necessary."
40. After passing the final order in favour of the writ petitioner by
the Writ Court, the Appellant Bank immediately filed a writ appeal in the
year 2012 and obtained the Stay, which has been operating since then till
today. During these 14 years, the Bank could have filed an application for
necessary directions to initiate fresh action against the petitioner, as Shri
S.K. Jain had completed his term of Chairmanship. Had this application been
moved, this Court would have permitted the Bank to initiate the denovo
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departmental proceeding. But, after expiry of 14 years, no useful purpose
would be served by remanding this matter back to the Bank to initiate fresh
departmental enquiry. The writ petitioner was aged about 55 years at the time
of filing the writ petition, and now he must have crossed the age of
superannuation. In view of the above discussion, we do not find any ground
or reason to interfere with the he order dated 26.09.2012 passed by the
learned Single Judge in W.P. No. 5823 of 2006 (S) ; hence, this Writ Appeal
is dismissed.
41. The petitioner has filed as many as 10 petitions against the Bank,
n a m e l y, W.P. Nos .3439/2002, 651/2003, 6508/2005, 6509/2005,
13903/2006, 13904/2006 & 13906/2006 and W.P.(S) Nos .2968/2003,
2969/2003 & 1947/2004, which are pending before Single Bench awaiting
final outcome this Writ Appeal. All the aforesaid writ petitions were tagged
alongwith this writ appeal (WA No.1277/2012). These writ petitions be listed
for adjudication on merits before the Single Bench as per roster.
42. In the result, the writ appeal stands dismissed.
(VIVEK RUSIA)
(PRADEEP MITTAL)
JUDGE
JUDGE
Shivani
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