Calcutta High Court (Appellete Side)
Subodh Chandra Jana vs The State Of West Bengal & Ors on 14 June, 2012
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
14.06.2012
ss W.P. 6481(W) of 2008
Subodh Chandra Jana
Vs.
The State of West Bengal & ors.
Mr. Tapan Chakraborty
Mr. Balal Lal Sahoo
Mr. Sankha Prasad Roy
... For the petitioner
Mr. Milan Ch. Bhattacharya
Mr. D. K. Sengupta
... For the Bank
The subject-matter of this writ petition is that the
impugned order of dismissal communicated by the Chief
Executive Officer of Howrah District Central Co-operative
Bank as well as the impugned order of affirmation of
such dismissal by the appellate body as communicated
by the same Chief Executive Officer on 2nd February,
2008.
The writ petitioner was appointed as a clerk-cum-
supervisor on 20th day of December, 1979 in Howrah
District Central Co-operative Bank (hereinafter referred to
as 'the said Bank'). Since the date of appointment he was
performing his duty in an unblemished manner. On 3rd
day of November, 2004 the Executive Officer of the said
Bank issued a show-cause notice thereby raising some
2
charges against him and he was asked to show cause
why he should not be dismissed from his service.
Although it was a show-cause notice but some charges
were made against the writ petitioner. On 12th November,
2004 the writ petitioner replied to those charges thereby
denying all allegations and imputation made against him.
The respondent authorities by and under their order
dated 25th November, 2004 suspended him.
It was alleged that at the time of serving the show- cause notice, in the form of a charge-sheet, the respondent authorities did not supply the writ petitioner the documents to be relied by them and they also did not supply the name of witness to be produced and/or examined at the time of enquiry. However, the enquiry was held and report was submitted against the first show-cause notice on 13th May, 2005. Thereafter, another show-cause notice was issued on 25th July, 2005. The writ petitioner immediately after receiving the said show- cause notice, which is second in number, replied to the same denying the allegations made therein and specifically pointed out that although he has replied to second show-cause dated 25th July, 2005 but he was not served with the annexures and requested them to send 3 annexures which they have not enclosed though it is mentioned in the show-cause letter. He has also mentioned in the reply that at the time of issuing loan the Branch Manager of the concerned Branch checked and verified all papers as per sanctioned letters of all loans. He also mentioned that after proper verification and specification Savings Bank accounts were opened. It was mentioned that sometime in absence of supervisor the authorities also issued loan. He also replied that as per his enquiry the borrowers are genuine. He denied the charge of defrauding the bank.
Enquiry was held against the show-cause notice issued second time and an enquiry report was submitted before the disciplinary authority. It appears that the writ petitioner by his letter dated 10th August, 2005 wrote to the Chief Executive Officer of the said Bank that "I have received show-cause notice dated 25th July, 2005 on 3rd August, 2005 along with xerox copy of the enquiry report dated 13th May, 2005 submitted by the enquiry officer, Md. Addas, Co-operative Development Officer, Howrah range. He informed that the respondents did not disclose the annexures which are enclosed to the enquiry report submitted by the enquiry officer. The said letter was not 4 replied by the concerned respondents nor he was supplied the enclosures/annexures to the first enquiry report submitted by the enquiry officer on 13th May, 2005 against the first show-cause notice issued by the respondent authorities. The enquiry officer submitted second enquiry report to the disciplinary authority but copy was not supplied to the writ petitioner. The writ petitioner had to move a writ petition before this Hon'ble Court. The said writ petition being W.P. No.17710(W) of 2007 was disposed of by this Hon'ble Court on 30th August, 2007. The learned Single Judge recorded that despite lapse of nearly three years from the date of order of suspension, the disciplinary proceedings have not been brought to any logical conclusion. Over and above this, the subsistence allowance which was being paid to him has been drastically reduced resulting in the petitioner being subjected to utter financial hardship.
However, this Hon'ble Court did not decide the controversy raised in that petition but disposed of the writ petition by directing the bank authorities to bring the disciplinary proceeding to its logical conclusion. The direction of this Hon'ble Court reads as follows :-
"Accordingly, the writ petition stands disposed of with a 5 direction upon the respondent Bank to furnish to the petitioner, if not already furnished, copies of the reports of enquiry within ten days from date positively. The petitioner shall have two weeks' time to reply to the enquiry reports from date of its receipt and this time limit is peremptory. Within a week from date of receipt of the petitioner's reply to the enquiry reports, the disciplinary authority of the petitioner shall take an appropriate decision and communicate the same to the petitioner. If no reply is received from the petitioner, the disciplinary authority shall proceed exparte if a decision is taken not to terminate the service of the petitioner but any penalty is impoised which does not have the effect of termination of his service, he shall be allowed to resume his duty forthwith and the suspension order shall stand revoked in such case. The same direction would apply if the disciplinary authority upon consideration of the petitioner's reply to the enquiry reports is of the view that the charges have not been established and the petitioner shall be paid monetary benefits to which he is entitled minus subsistence allowance already paid to him. It is, however, made clear that in the event the final order on the disciplinary proceedings initiated against the petitioner are not passed by the disciplinary authority within the time fixed above, the suspension order shall not be operative any further and the petitioner shall be permitted to resume his duty.
With the aforesaid directions, the writ petition stands disposed of without any order for costs."
The respondent Bank was directed to furnish copy 6 of report of enquiry within ten days from the date of the order positively and the petitioner was permitted to give reply by two weeks to the enquiry report from the date of receipt and the disciplinary authority was directed to take appropriate decision within a week thereafter. Further direction was given that the petitioner should be paid arrear salaries minus suspension allowance which was already paid.
After disposal of the writ petition the respondent authorities supplied a copy of the second enquiry report against which the petitioner gave reply. In that reply he pointed out that the show-cause notice which was issued second time, only one page was enclosed relating to list of ration cards of 17 persons but no copy of other documents were attached which have been relied on for framing the charges as averred in the said show-cause notice.
He also replied that for drawing up a departmental proceeding, the disciplinary authority is to issue charge- sheet which would contain the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges, a statement of imputation of misconduct or misbehaviour in support of each article of 7 charges, which shall contain (I) a statement of relevant facts including any admission or confession made by the delinquent (II) list of documents by which and a list of witnesses by whom the articles of charges are proposed to be sustained, are to be provided, but the said show-cause notice was served without all those documents and particulars.
It was specifically contended in that reply that the departmental proceeding was initiated against the petitioner without making any room for giving any opportunity to submit explanation effectively and evidence in support of defence for the sake of natural justice as provided in the Service Rules framed for that purpose.
He has expressed his inability to give proper reply in support of Saktipada Barman due to non-supply of index in the ledger and he asserted that the allegations raised relating to Sri Barman are not correct. Sri Barman has already repaid the first loan and the current loan was being repaid.
However, he has complained in the reply that no annexure was supplied to the writ petitioner although the copy of the enquiry report was supplied. He reminded 8 that he has issued letter dated 10th August, 2005 to supply the documents and annexures to be relied on by the respondent authorities as well as the annexures to the report of the enquiry officer but that was not replied nor the copies of those annexures were supplied to the writ petitioner. He complained violation of principle of natural justice and also rules applicable in this regard.
In that reply he specifically mentioned that Sri Barman, with whom alleged connivance was raised, was not called for before the authority for examination and he could not examine and/or cross-examine him.
Basically, it appears that the writ petitioner is complaining on all occasions about non-supply of documents relied upon by the respondents during enquiry proceeding and also the documents which are annexures to the enquiry report submitted before the disciplinary authority.
The respondent authorities on all occasions did not consider the petitioner's right to get all those documents for giving proper reply either to the show- cause or to the enquiry report and he was also not supplied the list of witness nor he was allowed to cross- examine the witness produced by the respondent 9 authorities to substantiate the charges framed. The writ petitioner in his reply mentioned that although he was directed by the respondents to give reply within specified time but they did not supply copies of documents and annexures to the enquiry report which are all essential for him to give effective and proper reply.
He also pointed out in his reply that against his prayer for supplying the list of documents a reply was given wherein the concerned respondent replied as follows :-
"With your letter dated 17-09-2007, you have enclosed letter dated 26-03-2007 addressed to the Enquiry Officer wherein you have categorically admitted that your prayer has not been allowed/considered by the said Enquiry Officer. Therefore, now at this stage after completion of the enquiry proceedings by the Enquiry Officer in your presence, supply of the wanted documents as suggested in this letter is redundant. It5 may further be noted that in the writ petition you have not made prayer for the same and as such in compliance to the direction passed by the Hon'ble Justice Dipankar Dutta, we have duly forwarded the copy of the enquiry report and you are required to reply within 14 days. Therefore, question of supply of any documents at this stage does not arise.
The concerned disciplinary authority who was considering the two enquiry reports, two show-cause 10 notices and two replies, did not consider this aspect of the matter relating to non-supply of relevant documents used by the respondent authorities during enquiry and the documents which were annexures to the two enquiry reports and the allegations of not allowing the writ petitioner to cross-examine the witness. They have passed the order of dismissal without considering the allegations of violation of principle of natural justice and violation of the rules applicable in this regard.
It appears from the records that on 30th August, 2007 when the order was passed by the learned Single Judge of this Hon'ble Court directing the concerned respondent to supply the copies of the enquiry reports, they did not disclose that the order of dismissal was passed and the communication letter dated 29th August, 2007 has been issued by the Chief Executive Officer.
It appears that in the communication it was noted that the Board of Directors took final decision for dismissal in their meeting held on 28th September, 2007. It is not understood how the officer can sign the communication letter on 29th August, 2007 when there is no Board resolution of such dismissal.
However, the writ petitioner preferred an appeal 11 against the order of dismissal and he has raised a question as regards non-supply of relevant documents and also prejudice suffered by him for such non-supply and further pointed out that he was not given the list of witness. He was not allowed to inspect the documents. He was not given chance to examine or cross-examine the witness which is violation of principle of natural justice and contrary to the requirement of the rules applicable. He took a plea that the decision making process was vitiated. Therefore, the impugned order of dismissal should be set aside.
The appellate authority although decided to affirm the order of dismissal, they remained silent against the allegations and/or the submission made by the writ petitioner for non-compliance of the requirement of the rules as well as for violation of principle of natural justice. The appellate authority relied on the report submitted by the enquiry officer and they have just recorded that the natural justice has been performed and they have arrived at a decision to remove the writ petitioner from the service.
Both the orders which are subject-matter of challenge in this writ application and are objected by the 12 learned Counsel appearing on behalf of the petitioner.
Mr. Chakraborty, learned Counsel appearing in support of the writ petitioner submits that two show- cause notices were issued one after another. Enquiry was also held by the named enquiry officers. But the documents relied upon by the concerned respondents were never supplied to the writ petitioner. Mr. Chakraborty submitted that at all stages the writ petitioner raised objection to the unlawful action on the part of the respondent authorities and prayed for supply of the copy of relevant documents, annexures as well as list of witness but the respondent authorities did not allow him to get the same. Mr. Chakraborty submitted that the writ petitioner was seriously prejudiced. He was denied proper opportunity to reply the allegations made by the respondent authorities in their two show-cause notices issued one after another. He submitted that the respondent authorities are with a definite mindset of removing the petitioner by hook or crook.
Mr. Chakraborty submitted that the writ petitioner serving as supervisor got all required documents from the loanees and checked it and submitted to the Committee who are the authorities to approve and/or sanction the 13 loan in favour of the applicants and the concerned Committee after proper verification and consideration of the application allowed the applicants to get the loan from the co-operative bank. Therefore, it is the ultimate decision of the Committee who are the official authorities to sanction and approve the loan in favour of the applicants but the respondent authorities have raised allegation and framed charges against the writ petitioner shifting the responsibility on the shoulder of the writ petitioner who has merely recommended the sanction of the loan in favour of the respective candidates although the ultimate decision was taken by the Committee.
Mr. Chakraborty submitted that although the co- operative society is not a State within the meaning of Article 12 of the Constitution of India but if any such society is duty bound to carry out any statutory obligation mandated under a particular Statute and if a person, affected by such non-compliance of the statutory obligations, approaches a Writ Court, such Court can pass appropriate direction in exercise of its power under Article 226 of the Constitution of India for performance of the statutory obligation if it appears to the Court that for such non performance, any of the legal rights of the writ 14 petitioner is infringed. He cited the judgement reported in 2010(2) C.H.N. (Cal) page 339 (Sandip Biswas Vs. State of West Bengal & ors.).
It was submitted by Mr. Chakraborty that the judgement reported in 2005(6) S.C.C. 657 supports his contention that the jurisdiction conferred on the High Court under Article 226 is very wide, judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. A writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and it is available against a body or person performing a public law function and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. He submits in the instant case the respondent authorities have violated Rule 108 and Rule 48(F) of the West Bengal Co-operative Societies Rules, 1987.
Mr. Chakraborty also submitted that at the time of moving this writ application an order was passed by this 15 Hon'ble Court wherein the Bank authorities were permitted to raise a dispute under Section 95 of the Co- operative Societies Act for realisation of the demand made by the Society through its Advocate's letter dated 7th August, 2008. The concerned Bank authorities started the proceeding by filing a plaint before the learned Arbitrator appointed under Section 95 of the West Bengal Co-operative Societies Act, 1983. But in spite of granting several opportunities the Bank authorities failed to produce the relevant and required documents before the learned Arbitrator and accordingly the learned Arbitrator on 7th January, 2010 closed the proceeding and the disputed case file was returned to the Assistant Registrar, Co-operative Societies, Howrah range.
Mr. Chakraborty submitted that the Bank authorities did not have any documents on the basis of which they cannot claim such a huge amount of money which is about 12 lacs and odd. In fact, the proceeding before the learned Arbitrator failed. Such fact was not denied by Mr. Bhattacharya, the learned Counsel appearing for the respondent-Bank. However, they have claimed that further appointment was made but then the writ petitioner is not at all aware of any such 16 appointment.
Mr. Chakraborty submitted that even if there is such appointment whether after lapse of so many years whether such proceeding is permitted to be referred before any other Arbitrator subsequently is a question of dispute and in case any notice is served appropriate steps would be taken on behalf of the petitioner. Mr. Chakraborty submitted that both the learned Single Judge and the Division Bench of this Hon'ble Court have clearly held that in case of violation of principle of natural justice by the enquiry officer, Board of Directors or the appellate authority as well as violation of Rule 108 and 48(F) of the West Bengal Co-operative Societies Rules, 1987 the writ petition is maintainable and this Court has wide power and jurisdiction to pass appropriate direction of quashing the impugned order of dismissal when the termination of service of the concerned employee is made wrongfully and illegally and specially when an equal efficacious alternative remedy is not available to the concerned employee.
Mr. Chakraborty submitted that the several Supreme Court judgements were cited before the Court and this Court after careful consideration of all those 17 judgements has come to a conclusion that in case of violation of principle of natural justice of any of the statutory rules where the concerned employee was not given proper opportunity of hearing the writ court is to interfere in such matters. The first judgement cited by Mr. Chakraborty is reported in 2004(2) C.L.J.(Cal) page 313 ( Sri Amalesh Maity Vs. The State of West Bengal & ors.); the other judgement of the High Court reported in 2007(1) W.B.L.R. (Cal) 424 ( Hirendra Nath Halder Vs. Union of India & ors.). In that judgement also this Hon'ble Court has entertained the writ petition on the ground that the conclusion arrived at in the enquiry proceeding under challenge was not sustainable in law due to procedural irregularity, which has taken place in the instant proceeding also.
Mr. Chakraborty also relied upon a judgement reported in 2006(1) C.L.J. page 1 (Shri Bhabani Adhikari Vs. The West Bengal State Co-operative Bank Limited & ors.) wherein it was specifically held that the respondent Bank authorities are bound to comply with the requirement of the provisions of Rule 108 of the West Bengal Co-operative Societies Rules, 1987 while conducting the disciplinary proceeding against the 18 concerned employee and for breach of any such obligation under the statutory rules, writ petition can be filed by the aggrieved employee before the Hon'ble High Court even though Co-operative Society in West Bengal is not a 'State' within the meaning of Article 12. An appeal was preferred against this judgement and the Hon'ble Division Bench have upheld the findings of the court below about the maintainability of the writ petition even in spite of the fact the Co-operative Society is not 'State' within the meaning under Article 12 of the Constitution of India. However, the Appeal Court modified the order of trial court keeping the order of quashing the order of dismissal and setting aside the direction for de novo trial, etc. Mr. Chakraborti laid emphasize on paragraphs 22, 28 and 29 of the Division Bench judgement reported in 2009(1) C.H.N. 573 (Bhabani Adhikari Vs. West Bengal State Co-operative Bank Limited & ors. and West Bengal State Co-operative Bank Limited & ors. Vs. Bhabani Adhikari & ors.). Mr. Chakraborty also referred one other Division Bench judgement delivered by this Hon'ble Court in case of Debasis Mukherjee Vs. State of West Bengal & ors. reported in 2011(3) C.L.J.(Cal) page 365 wherein non-supply of material documents and bias attitude of 19 the disciplinary authority, violation of principle of natural justice were shown and the Division Bench have been pleased to set aside the order of dismissal.
It was contended by Mr. Chakraborty that in the instant case in spite of repeated requests on the part of the writ petitioner to supply the documents relied in the proceedings, the respondent authorities deliberately and intentionally withheld those documents and did not allow the writ petitioner to give an appropriate reply in that regard. He submitted that non-supply of those documents vitiated the entire proceeding and the ratio of the aforementioned judgement is clearly applicable in the instant case. Then Mr. Chakraborty submitted another Single Judgement judgement reported in 2003(2) C.L.J. 579 (Sri Pranab Chowdhury Vs. Chapra Thana Agriculture Marketing). In that judgement also this Hon'ble Court considered that the concerned employee although chargesheeted but along with charge-sheet neither the list of documents nor the list of witness was given and in view of the bias attitude on the part of the respondent authorities, the concerned employee was dismissed. On that basis this Hon'ble Court quashed the entire proceeding on the ground that the employee was 20 not given opportunity of hearing. Therefore, the entire proceeding is illegal. He submitted in that case the writ petitioner was directed to be reinstated.
Mr. Chakraborty also cited another judgement reported in 2010(4) C.H.N. (Cal) page 580 (Santanu Kumar Mukhopadhyay Vs. State of West Bengal & ors.) in support of his contention that no supply of documents vitiated the entire proceedings.
The respondent authorities did not grant reasonable opportunity of hearing to the writ petitioner. The appellate authorities failed to consider this aspect of the matter even taking note of the facts and circumstances of the case and mechanically dismissed the employee. Therefore, he submitted that the ratio of this decision is squarely applying in this case specially when the disciplinary authorities as well as the appellate authority did not disclose any reason justifying as to why the documents were not supplied to the petitioner, which has prejudiced the petitioner to defend his case in a proper manner.
Mr. Chakraborty also cited another judgement reported in (2011)3 W.B.L.R. (Cal) page 232 (Mostak Seikh Vs. The State of West Bengal & ors.). In support of 21 his contention the respondent authorities being the quasi-judicial body must disclose the reasons so that the person concerned who is affected thereby may approach the higher Forum and/or higher Court assailing the decision thereof.
He submitted that the absence of any reason is nothing but non-application of mind. Therefore, on that score the impugned order passed by the disciplinary authority as also by the appellate authority should be set aside. Mr. Chakraborty further pointed out that the enquiry officer is biased and all times favoured the respondent Bank. He specifically pointed out that the complaint against the writ petitioner was that one Sri Barman was granted loan twice. However, in the enquiry it was revealed that the first loan was paid by said Sri Barman and he was also paying the second loan by instalment as was granted in his favour.
Even in spite of these findings the enquiry officer held the writ petitioner guilty of all charges.
Mr. Chakraborty pointed out that one of such cases name of Dilip Kumar Mondal was not mentioned in the charge-sheet but was considered by the enquiring officer thereby denying opportunity to the writ petitioner 22 to deal with the same and/or to allow evidence to be laid before the enquiry officer in that regard.
Mr. Chakraborty specifically pointed out that in the first enquiry report submitted by the enquiry officer on 13th May, 2005 it was recorded that (I) some of the applicants stated that the photocopy of the Ration cards have not been submitted by them and alleged that it has been prepared by the writ petitioner against some money;
(ii) some of the applicants preferred to remain absent in spite of receiving the notice for remaining present in the enquiry; (iii) some of the applicants stated that the photocopies of the Ration Cards have not been submitted by them and promised to show their original Ration Cards on a next day but did not turn up ever; (iv) some of the applicants stated that the photocopies of Ration Cards submitted are genuine and they will show the original of the same on a next day but did not turn up ever; (v) in case of some applicants the notice for remaining present in the enquiry have been returned with comments as 'Not claimed'/'Not known'/'No such person in this Office'. The concerned enquiry officer did not disclose who are those applicants and why those applicants were not produced before the enquiry officer 23 and why the writ petitioner was not allowed to cross-
examine those persons.
He further submitted that some relevant documents were enclosed with the enquiry report and those documents were never supplied to the writ petitioner either before starting of the enquiry or during the enquiry period before the enquiry officer. He submitted the enquiry officer is fully biased and determined to submit report against the writ petitioner. He further submitted that the decision making process is vitiated. Therefore, the impugned enquiry report as well as the impugned order of dismissal should be set aside.
Mr. Bhattacharya, learned Counsel appearing for the District Central Co-operative Bank submitted that the respondent authorities have given all reasonable opportunities to the writ petitioner and he was allowed to appear before the enquiry officer. He was given inspection of the documents and therefore, there is no violation of principle of natural justice. He submitted the allegation made by the writ petitioner is without substance and therefore, the same should be disallowed.
Mr. Bhattacharya further submitted although the writ petitioner has prayed for quashing of the order of 24 dismissal passed by the disciplinary authority affirmed by the appellate authority but he has not made the Bank as a party-respondent in this proceeding, the Board members were also not made parties. Therefore, this writ petition must fail and the prayer of the writ petitioner should be disallowed.
Mr. Bhattacharya further submitted that there are several judgements in which it was clearly held that the Co-operative Society is not a 'State' within the meaning of Article 12 of the Constitution of India and therefore, no writ lies against the co-operative bank. He further submitted that the Bank itself has its Service Rules which is applicable in case of the writ petitioner. Therefore, there is no question of violation of Rule 108 of the West Bengal Co-operative Rules, 1987 and according to him, this writ petition is not maintainable in the discretionary writ jurisdiction under Article 226 of the Constitution of India.
Mr. Bhattacharya submitted that there is service regulation framed by the Co-operative Society by framing its by-laws and those rules are applicable in the instant case. He submitted that the Bank authorities are authorised to dismiss the writ petitioner under Rule 25 28.5(a) of the By-laws. Mr. Bhattacharya further submitted that the writ petitioner was served with show- cause notice thereafter he was served additional show- cause which was duly replied by the writ petitioner and the writ petitioner never stated that he is under any difficulty to give reply without having the documents relied on by the disciplinary authority. He submitted that the documents are prepared by him. Therefore, the concerned employee is aware and has knowledge of those documents which was considered and relied upon in the proceeding.
He further submitted that this Hon'ble Court on earlier occasion gave a direction to supply the copy of the report which was duly comply with and the documents which are annexed to the report was not necessary to be supplied since there was no specific order and those documents are created by the writ petitioner himself. Therefore, he had knowledge about the same. Mr. Bhattacharya submitted that the concerned enquiry officer has considered all materials placed before him and after giving proper opportunity of hearing to the writ petitioner, submitted reports on two occasions and the disciplinary authorities considered those two reports and 26 have concluded the proceedings thereby taking a resolution of dismissal of the writ petitioner. An appeal was preferred and the appellate body after consideration of the entire matter have affirmed the order of the disciplinary authority. Therefore, there is no illegality in the order.
He submitted that there is no difference between the show-cause and the charge-sheet. He also submitted that there is no violation of Rule 108 and Rule 48(F). However, he also submits that since there are specific rules governing the service condition of the writ petitioner Rule 108 of the West Bengal Co-operative Rules of 1987 is not applicable in the instant case.
Mr. Bhattacharya cited the following decisions in support of his contention :
(1) 2006(11) S.C.C. 634 ( S.S. Rana Vs. Registrar, Coop. Societies and another). He also submitted that since the respondents did not follow any mandatory provision of Act or the Rule framed thereunder the writ petition is not maintainable; (2) 2002(5) S.C.C. 111, paragraph 43 (Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others);27
(3) 2005(7) S.C.C. 565, paragraph 2 (Gurcharan Singh Vs. Registrar, Cooperative Societies, H.P. and others). In this regard he submitted when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State;
(4) 2005(6) S.C.C. 289 (Supriyo Basu and others Vs. W.B. Housing Board and others);
(5) 1990(II) C.H.N. 284 paragraph 9 (Arjed Ali Gazi Vs. State of West Bengal);
(6) 2010(1) C.L.T. 643(HC) (Sandip Biswa Vs. The State of West bengal & ors.) paragraphs 17, 18 and 19.
Mr. Bhattacharya emphatically submitted that since there is no specific allegation of non-performance of any statutory duty, the writ petition is not maintainable which was held by this Hon'ble Court in the aforementioned judgements. He also submitted that when the dispute involved in a disputed question of fact the writ court should not interfere.
He also referred another judgement reported in 2004(2) C.L.T. 4(HC) (Bikash Talukdar Vs.State of West Bengal & ors.). In that case this Hon'ble Court held that the society is not a 'State' within the meaning of Article 12 of the Constitution of India. The other judgement cited by Mr. Bhattacharya is reported in A.I.R. 2008 S.C. 28 1235 (U.P. State Sugar Corpn. Ltd. & ors. Vs. Kamal Swaroop Tondon). Mr. Bhattacharya submitted that there is no difference between show-cause and charge-sheet. Therefore, the plea taken in the writ petition about issuance of charge-sheet is of no substance. In fact, the show-cause notice contained all the charges levelled against the writ petitioner and the writ petitioner is aware of those charges and replied to the same. Therefore, at this stage he cannot take this plea in this writ petition. Mr. Bhattacharya also submitted that for non-supply of the documents the writ petitioner has not been prejudiced, in fact, he did not suffer any prejudice and there is no averment in the writ petition. Therefore, non- supply of those documents is not fetal in the instant case.
He further submitted that even non-supply of those documents the writ petitioner gave reply to the show- cause and he appeared before the enquiry officer and enquiry was properly conducted upon giving him all reasonable opportunity of hearing. He also submitted that in view of the order dated 30th August, 2007 passed by the learned Single Judge of this Hon'ble Court directing the respondents to supply the copy of the enquiry report which was duly complied with and therefore, the writ 29 petitioner cannot question the stages of proceeding which was carried out prior to the supply of enquiry report and he is estopped from raising any such dispute since upto the stage of supply of enquiry report the proceeding has become regular and this Hon'ble Court while disposing of the earlier writ petition did not take any exception. Mr. Bhattacharya submitted that his clients have carried out the entire proceeding following the principle of natural justice. Therefore, this writ petition must fail.
In reply Mr. Chakraborty submitted that the respondents, Co-operative Bank authorities cannot act contrary to the rules. He further submitted that by-laws cannot override the statutory provision and rules. So far the by-laws are concerned that is contrary to the rules. Therefore, this Court is under an obligation to see whether rules are violated or not. In support of the aforementioned contention he relied on a judgement reported in 2007(12) S.C.C. 764 (Veena Kumari Tandon Vs. Neelam Bhalla and others). In that judgement the Hon'ble Supreme Court held that legislative Act shall prevail over the subordinate legislation. It was further held that by-laws must, therefore, conform to the provisions of the Act and cannot act in derogation 30 thereof.
Mr. Chakraborty lastly submitted that the respondents are same who were before this Court on earlier occasion and this Hon'ble Court after hearing the respondents passed the order and in this proceeding also the writ petitioner made the State of West Bengal, Registrar of Co-operative Society, Assistant Registrar of Co-operative Society, Chief Executive Officer of the Central Co-operative Bank Ltd., Howrah range, Central Co-operative Bank Branch Manager, Chairman, as party. He submitted that the respondent authorities are sufficiently represented by their officers and the concerned respondents through their learned Counsel made submission and moreover, the Chief Executive Officer of the concerned Bank who is representing the Bank itself is a party-respondent. Therefore, mere failure to take the name of the Bank or make the Bank as a party in this proceeding, the writ petition cannot be dismissed nor it could be bar to maintain the writ petition either.
He further submitted that the order of dismissal was communicated on two occasions by the Chief Executive Officer although no resolution of the Board nor 31 the order of the appellate authority was served upon the writ petitioner. Therefore, according to Mr. Chakraborty the writ petition is maintainable and in the facts and circumstances of the case the impugned order of dismissal as well as the impugned order of the appellate authority should be set aside and all arrear backwages should be released in favour of the writ petitioner.
Heard the learned Counsel appearing for the respective parties and considered the relevant materials disclosed in this writ petition. After careful consideration of all those documents disclosed in this proceeding it appears that on different stages the writ petitioner made representation before the authorities to supply the copy of the documents to the writ petitioner for giving a reply to the show-cause. However, the respondent authorities did not respond to that. Interestingly enough although the enquiry report annexed some documents but the disciplinary authority did not supply those annexed documents with the enquiry report. Only enquiry report was supplied the respondents. It appears that on earlier occasion this Hon'ble Court directed to supply the copy of the enquiry reports but the copy of the reports supplied to the writ petitioner without annexures of the reports. 32 The writ petitioner wrote several letters and also made representations and further mentioned in his reply to the second show-cause notice that the documents relied on by the disciplinary authority have not been supplied and those documents are necessary to give proper reply to the second show-cause. It was specifically informed that he required all those documents to defend himself but the respondent authorities did not bother to supply the same nor they have given inspection also.
Although some averments were made in the affidavit-in-opposition that inspection of those documents were given but nowhere it appears from the records that such an inspection was ever given to the writ petitioner. I find from the records that at the time of issuance of show-cause notice the documents which were relied by the respondent authorities were not disclosed nor the names of the witness were also disclosed. Moreover, even in spite of direction by this Hon'ble Court to supply copy of the enquiry report the respondent supplied incomplete enquiry report without annexures to the said enquiry report which were part and parcel of it and also relied upon by the enquiry officer, thereby taking a plea that the Hon'ble Court did not direct to supply the annexures. 33 Therefore, it is evident that the writ petitioner suffered prejudice for non-supply of the documents and annexures, etc. It appears that the respondent authorities are biased and they were determined to remove the writ petitioner by any means. It is very surprising that on 30th August, 2007 when the order was passed in the first writ petition, it was never mentioned by the respondents that they have already decided or an order of dismissal was passed whereas it appears from the order of communication made by the Chief Executive Officer that the dismissal order was passed by the Board which was communicated on 29th August, 2007 but it was recorded that Board meeting was held on 28th September, 2007. Although this fact was stated by the writ petitioner that was not dealt with by the respondent authorities in their affidavit-in-opposition. Although Mr. Bhattacharya submitted that it was typographical mistake but it appears from the communication letter that the order of dismissal was prepared before 29th August, 2007 but a subsequent date was given. It is important to point out that the actual resolution of the Board containing the impugned resolution of removal was never supplied nor 34 disclosed before this Court either. Therefore, it can be safely concluded that the respondents at all stages violated the principles of natural justice and took the impugned resolution before 29th August, 2007 to remove the petitioner, although they did not disclose it before this Court on 30th August, 2007 when the first writ application was disposed of with direction to supply copy of the enquiry report to the petitioner.
In my view, there is violation of principle of natural justice from the very beginning of this impugned proceedings. However, on earlier occasion this Court did not consider this aspect of the matter since that was not the subject-matter in the first writ petition. The first writ petition was restricted to non-supply of enquiry report and releasing the suspension allowance in favour of the writ petitioner. It is also evident that the respondents also violated the provisions of Rule 108 and 48(F) of the West Bengal Co-operative Societies Rules, 1987 which are all applicable in the instant case.
In my view, the respondent authorities did not give proper opportunity to file proper reply to the show-cause and to the enquiry report and the writ petitioner was seriously prejudiced. Although the petitioner has taken 35 this plea in his reply to the second show-cause notice, the concerned disciplinary authority did not consider the same and resolved to pass the impugned order of dismissal mechanically even before the reports were supplied. The appellant authority similarly disposed of the appeal without considering the plea of violation of principle of natural justice as well as non-compliance of the Rules specially the Rule 48(F) of the West Bengal Co- operative Rules, 1987. Thus the entire proceedings are vitiated. The impugned order of dismissal is not at al sustainable in law. Therefore, the impugned order of dismissal passed by the disciplinary authority i.e. the Board members, affirmed by the appellate authority is set aside.
It is now well settled that even though the Co- operative Society in West Bengal is not 'State' within the meaning of Article 12 of the Constitution but when there is violation or breach of any obligation under the statutory rules a writ petition can be filed by an aggrieved employee before this Hon'ble High Court. Therefore, the submissions of Mr. Bhattacharya as regards maintainability of the writ petition is rejected since it was held in the instant case that there is not only violation of 36 principle of natural justice but also violations of the obligations under Rule 108 and Rule 48(F) of the West Bengal Co-operative Rule. The judgements cited by Mr. Bhattacharya are not at all applicable in the facts and circumstances of this case. This writ petition is therefore maintainable. For all the aforementioned reasons the writ petition is allowed.
I direct the Co-operative Society to release all arrear salaries minus suspension allowance already paid to the writ petitioner. Such payment is to be made within a period of six weeks from the date of communication of this order. The respondent authorities are further directed to reinstate the writ petitioner within a period of two weeks from the date of communication of this order by a letter of the learned Advocate on record to the writ petitioner in the event the writ petitioner did not attend the date of superannuation in the meantime.
Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
(Ashoke Kumar Dasadhikari, J.) 37