Himachal Pradesh High Court
Suresh Kaushal vs State Of H.P. & Others on 28 September, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4031 of 2021
Reserved on: 20.9.2023
.
Date of decision : 28.9.2023.
Suresh Kaushal ...Petitioner.
Versus
State of H.P. & others ....Respondents.
of
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
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Whether approved for reporting?1Yes.
For the petitioner : Mr. Nitin Thakur, Advocate.
For the respondents : Mr. Pushpender Jaswal, Addl. A.G
and Mr. Gautam Sood, Mr. Rahul
Thakur & Ma. Priyanka Chauhan,
DAGs, for respondents No. 1 and 2.
Mr. S.M. Goel, Advocate, for
respondent No.3.
Satyen Vaidya, Judge:
By way of instant petition, the petitioner has prayed for the following substantive reliefs:-
"i) Issue a writ of mandamus directing respondent No.3 to reinstate the petitioner with all consequential benefits from 2012 till day alongwith 9% interest; and/or
ii) Issue a writ of certiorari quashing and setting aside the orders passed by respondent No.3 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 28/09/2023 20:35:47 :::CIS -2-
dated 11.2.2010, 12.10.2012 and 22.11.2019; and/or
iii) Issue a writ of mandamus directing respondent .
No.3 to release the salary of the petitioner for the month of September-October 2012 alongwith 9% interest; and/or
iv) Issue a writ of mandamus directing respondent No.3 to release the bonus/exgratia which was of due and admissible to the petitioner as on March 2012 alongwith 9% interest."
2. rt Petitioner was Grade-III officer in the Himachal Pradesh State Co-operative Bank Limited (for short "the Bank"). He was charged for grave misconduct. An inquiry was conducted under the relevant service rules of the Bank and petitioner was held guilty of the charges framed against him. The disciplinary authority upheld the findings of the inquiry officer and vide order dated 11.2.2010 reverted the petitioner as Grade-IV officer for an indefinite period until he was found fit by the competent authority to be re-considered/promoted to the higher post/grade on the basis of his performance/eligibility subsequent to the date of his reduction in the lower grade.
Petitioner was also divested of his original seniority in ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -3- Grade-III with the direction to determine his seniority on re-promotion, if found fit, from the date of his re-promotion .
without regard to his past service prior to his reduction.
3. A supplementary charge-sheet was again submitted against the petitioner. The charges were again found proved against him and the disciplinary authority of vide order dated 12.10.2012 dismissed the petitioner from service of the Bank.
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4. Aggrieved against the order of dismissal dated 12.10.2012, petitioner filed an appeal before the Board of Directors (BOD), which also was dismissed vide order dated 1.1.2015. Petitioner approached the Registrar Co-
operative Societies (for short, "The Registrar") against the order dated 1.1.2015 of the BOD, who remanded the matter back to the BOD for re-consideration vide order dated 17.3.2015, on the ground that similar situated delinquent employees of the Bank namely Sh. N.D. Sharma and Sh. Deepak Mehta had been reinstated back after re-
consideration of their cases by the Bank and for such reasons, the case of the petitioner was also required to be re-considered.
::: Downloaded on - 28/09/2023 20:35:47 :::CIS -4-5. The BOD vide order dated 12.11.2019 reaffirmed its previous order and the decision dated 12.10.2012 of the .
disciplinary authority was upheld.
6. Petitioner again approached the Registrar against the order of BOD dated 22.11.2019, however, this time remained unsuccessful and the Registrar refused to of entertain the appeal of the petitioner being not maintainable vide his order dated 21.11.2020.
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7. I have heard the learned counsel for the parties and have also gone through the record carefully.
8. Learned counsel for the petitioner has raised two issues at the time of hearing in order to assail the dismissal order passed against him. In the first place he has referred to Rule 56 (a) of the Rules relating to the terms of employment and working conditions of the employees of the Bank (for short, 'the rules') and on its strength has tried to submit that the impugned orders dated 11.2.2010 and 12.10.2012, passed by the disciplinary authority firstly reducing the rank of the petitioner and secondly dismissing him from service amounted to award of punishment under Rule 55 of ibid ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -5- Rules and since the mandatory requirement of prior permission of the Registrar had not been complied with .
before passing the impugned orders, hence the same were bad in law. In the second place, it has been argued that the disciplinary authority in the case of the petitioner was the Managing Director of the bank. The Managing Director of also was an ex-officio member of the BOD. The appeal was heard by the BOD in which, the Managing Director was rt also a member and as such, the entire proceedings undertaken by the appellate authority was vitiated. The Managing Director could not have been a member of the Tribunal hearing against his own order.
9. On the other hand, learned counsel for the Bank has raised the issue of maintainability of the petition in the first instance and thereafter has proceeded further to answer the issues raised on behalf of the petitioner. As regards the maintainability of the writ petition is concerned, it has been submitted that in C. K. Malhotra vs. Himachal Pradesh State Co-operative Bank & others along with connected matters, reported in 1993 (3) Shimla Law Cases 243, a Division Bench of this Court ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -6- has authoritatively held that the Himachal Pradesh Co-
operative Bank was not a state or other authority within .
the meaning of Article 12 of the Constitution of India and also that the remedy of writ was not available against the Bank. He further submitted that the view in C.K. Malhotra (supra) has been affirmed by a Full Bench of this of Court by delivering judgment in CWP No. 3634 of 2012, titled as Vikram Chauhan vs. Managing Director & rt others along with connected matters.
10. As regards the issue raised on behalf of the petitioner on merits, learned counsel for the respondent Bank has submitted that the mandate of Rule 56 (a) of the rules ibid was not absolute. The permission of the Registrar was necessary in case the bye-laws of the Society required so. He further submitted that the Managing Director had not participated in the BOD meeting hearing the appeal of the petitioner and in fact being the Chief Executive Officer of the Bank, he had signed the order on behalf of the BOD.
11. Taking the issue of maintainability first, it will be relevant to notice the mandate as rendered by the ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -7- Hon'ble Division Bench of this Court in C. K. Malhotra (supra). The relevant extract of the same is reproduced as .
under:-
"98. Consequently, we have no hesitation in holding that the three Societies, namely. The Himachal Pradesh State Co-operative Bank Ltd.; The Kangra Central Co-operative Bank Ltd, and the Himachal Pradesh State Co-operative of Marketing and Development Federation Ltd, are not other authorities' and, as such, cannot be characterised as 'State' when the meaning of Art. 12 of the Constitution rt and the same are also not authority within the meaning and for the purpose of Article 226 of the Constitution.
Order passed by the Societies under their respective service regulations against its employees, as such, or in connection with employment cannot be corrected by way of writ petitions. The petitions also would not be maintainable in order to challenge the action of the Registrar since the same is not an exercise of statutory power conferred upon him under the provisions of the Act or the Rules but an exercise of powers by him under service regulations framed under Bye-laws having no force of law. The writ petition also will not be maintainable since none of the three Societies are discharging any public functions."
12. Indisputably, it was mandated firstly that the Himachal Pradesh State Co-operative Bank Limited was not the other authority to be characterised as State within the meaning of Article 12 of the Constitution and was also ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -8- not an authority for the purpose of Article 226 of the Constitution. It was further held that the order passed by .
the Society under its service regulations against its employees as such or any kind of employment cannot be corrected by way of writ petition. The petitions to challenge the action of Registrar were also held to be not of maintainable since the same was not an exercise of statutory powers conferred upon him under the provisions rt of the Act or the rules but an exercise of powers by him under service regulations framed under bye-laws having no force of law. Further, the writ petitions against the bank were held to be not maintainable since the Society was not discharging any public functions.
13. The pronouncement in C. K. Malhotra (supra) came for consideration before a Full bench of this Court in CWP No. 3634 of 2012, titled as, Vikram Chauhan vs. Managing Director & others along with connected matters reported in Latest HLJ 2013 (H.P.) 742 (FB). The Hon'ble Full Bench of this Court after taking notice of the question referred to it observed as under:-
::: Downloaded on - 28/09/2023 20:35:47 :::CIS -9-"The Division Bench while hearing CWP NO 3634 of 2012- D vide order dated 20 July, 2012 has referred the following question to be considered by the Full Bench.
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"Whether the Kangra Central Co-operative Bank, the Himachal Pradesh State Co-operative Bank Ltd and the Jogindra Central Co- operative Bank, are 'State' within the meaning of Article 12 of the Constitution of India and whether a writ would lie against them?"
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2. The question, as formulated raises two independent issues. Firstly, whether the State Cooperative Banks are State within the meaning of Article 12 of the Constitution? rt The second question, which, in our view is an independent question, is, whether a writ would lie against those Cooperative Banks."
14. After discussing the law on the issues, Hon'ble Full Bench answered the formulated issues as under:-
"15 For the view taken by us on both facets of the referred questions, proceed to answer the Reference as under:
(1) The question as to whether Kangra Bank is a State within the meaning of Article 12 of the Constitution of India, is no more res Integra. It has been authoritatively answered by the Apex Court in S.S. Rana's case (supra).
(2) Even in the case of H.P, State Cooperative Bank Ltd., the question has been answered by the Division Bench of our High Court in Chandresh Kumar Malhotra's case (supra). There is no conflicting decision of coordinate Bench of this Court ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -10- necessitating pronouncement on that question by the Full Bench.
(3) In the case of Jogindra Central Cooperative Bank, .
the decision in Mehar Chand's case (supra) is rendered by the learned Single Judge of this Court and no conflicting decision of the co-ordinate Bench muchless of the Division Bench or Larger Bench of our High Court with regard to the stated Bank has been brought to our notice. In any case, the said of question can be conveniently answered by the Division Bench in appropriate proceedings whether rt in the form of writ petition or Reference made by the learned Single Judge of this Court, as the case may be. As and when such occasion arises, the issue can be answered on the basis of settled legal principles and including keeping in mind the exposition of S.S. Rana's case (supra) of the Apex Court concerning another Cooperative Bank constituted under the Himachal Pradesh State Cooperative Act.
(4) As regards the second part of the question as to whether a writ would lie against the stated Cooperative Banks, we hold that it is not appropriate to give a definite answer to this question. For, it would depend on several attending factors. Further, even if the said Banks were held to be not a State within the meaning of Article 12, the High Court in exercise of powers under Article 226 of the Constitution of India, can certainly issue a writ or order in the nature of writ even against any person or Authority, if the fact situation of the case so warrants. In other words, writ can lie even ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -11- against a Corporative Society. Whether the same should be issued by the High Court would depend on the facts of each case."
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15. Thus, the judgment passed by the Hon'ble Division Bench in C.K. Malhotra was upheld in so far as it had held that the Bank was not a State or other authority of within the meaning of Article 12 of the Constitution.
However, while answering the second facet of the issue, the rt Hon'ble Full Bench specifically held that no definite answer could be given to the question referred to it and would depend on several attending factors. Even if the Bank was held to be not a State within the meaning of Article 12 of the Constitution, the High Court in exercise of powers under Article 226 of the Constitution was held jurisdiction to issue a writ or order in nature of writ even against any person or authority, if the fact situation of the case warranted. It has further been held that the writ can lie even against the co-operative authorities, however, its maintainability would depend on the facts of each case.
16. Recently, in petition for Special Leave to Appeal (Civil) No. 1246 of 2015, titled as, The Kangra ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -12- Central Co-operative Bank Pensioners Welfare Association (Regt.) vs. State of H.P., three Judges Bench .
of the Hon'ble Supreme Court after taking the notice of what has been held by the Full Bench in Vikram Chauhan (supra) has held as under:-
"The issue concerning maintainability was considered by of the Full bench and the observations made by the Full bench summed up the law on the point quite succinctly. On the facts as found by the Single Judge, which were rt recorded in paragraph 19 of the judgment, without entering into any other question, in our view, the petition as filed was perfectly maintainable. The Division Bench was in error in setting aside the view taken by the Single Judge in allowing the writ petition and in rejecting the review petition."
17. In view of above exposition, it cannot be said that the writ against the Bank will not be maintainable in any circumstance.
18. Coming to the facts of the case, the issues raised on behalf of the petitioner, as notice above, are capable of being gone into by this Court in exercise of writ jurisdiction since these touch upon the jurisdictional aspect of the orders sought to be challenged. Hence, I hold that the present writ petition is maintainable.
::: Downloaded on - 28/09/2023 20:35:47 :::CIS -13-19. Coming to the rival contentions of the parties on issues raised on merits, it will be gainful to refer to rule 56 .
(a) of the ibid Rules, which read as under:-
"56 (a) An employee may, for acts or omissions described in chapter 11 and in rule 54 be proceeded against for awarding punishment under Rule 55 by the competent authority. The category of employees and competent of authorities to award punishment are shown in the table below.
Provided that where for imposing major punishment of an rt officer, prior permission of the Registrar is necessary in accordance with bye-laws of the Bank, such punishment would be inflicted only after the permission of the Registrar is obtained.
Category of Employees Competent Authority
(i) Member of (i) Dy. G.M./G.M.
Subordinate Staff
(ii) Employee in Grade II, (ii) Managing Director
III, IV
(ii) Employee in Special (iii) Board of Directors
Grade and Grade-I
20. The proviso appended to Rule 56 (a) (supra), is clear and unambiguous in its language and import. The requirement to seek prior permission of the Registrar before imposition of major punishment on an officer of the Bank is only in such case where it is so provided in the bye-laws of the Bank.::: Downloaded on - 28/09/2023 20:35:47 :::CIS -14-
21. Learned counsel for the petitioner has not been able to show any provision of the bye-laws of the Bank .
wherein it has been mandated to seek prior permission of the Registrar before imposition of major penalty on the officer of Grade-IV or Grade-III under Rule 55 of the rules ibid.
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22. On the other hand, learned counsel for the respondent Bank has referred to bye-law 65 (iv) of the bye-
rt laws of the Bank which prohibits the imposition of punishment on the General Manager of the bank without prior approval of the Registrar. In such circumstances, the argument raised on behalf of the petitioner fails as there was no mandatory requirement of seeking prior permission of the Registrar before imposition of major penalty upon the petitioner.
23. The next question as raised on behalf of the petitioner also deserves to be decided against him for the reason that there is nothing on record that the Managing Director of the bank was member of the Board meeting at the time of hearing of appeal of the petitioner. The Managing Director is the Chief Executive Officer of the ::: Downloaded on - 28/09/2023 20:35:47 :::CIS -15- bank and he is an ex-officio member of the Board by virtue of his designation. The decision of the Board cannot be .
thus said to have been vitiated merely because its conveyance was under the signature of the Managing Director.
24. In view of the above discussions, I find no merit of in the petition and the same is accordingly dismissed.
Pending applications, if any, also stand disposed of.
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(Satyen Vaidya)
28th September, 2023 Judge
(kck)
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