Calcutta High Court (Appellete Side)
F.M.A. 1288 Of 2010 Debasis Mukherjee vs State Of West Bengal & Ors on 5 August, 2011
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Shukla Kabir (Sinha)
F.M.A. 1288 of 2010 Debasis Mukherjee.
Versus
State of West Bengal & Ors.
For the Appellant : Mr. Milan Kr. Bhattacharyya,
Ms. Sulagna Bhattacharyya.
For the Respondents : Mr. Jayanta Kumar Mitra,
Mr. Ashit Kr. Chakraborty,
Mr. Subhajit Panja.
For the State: Mr. Tapan Kumar Mukherjee,
Mr. Nilotpal Chatterjee
Heard On: 23.06.2011, 4.07.2011, 5.07.2011
6.07.2011, 12.07.2011.
Judgment On: 05.08.2011.
PRANAB KUMAR CHATTOPADHYAY, J.
This appeal has been preferred at the instance of the writ petitioner assailing the judgment and order dated 10th September, 2010 passed by a 2 learned Judge of this Court whereby and whereunder the said learned Judge dismissed the writ petition on merits.
The essential facts which are relevant for the purpose of deciding the issues raised in this appeal are briefly narrated hereinafter:
The appellant herein was appointed to the post of Junior Assistant,Grade- VI in Hooghly District Central Co-operative Bank Ltd. on 17th June,1993. The Chief Executive Officer of the said Bank issued an order of suspension to the said appellant and subsequently Board of Directors of the said Bank dismissed him from services of the Bank upon accepting the report of the enquiry officer on 17th November, 1994. After long lapse of almost four and half years the said appellant submitted a representation on 25th march, 1999 before the Chief Executive Officer of the Bank challenging the aforesaid order of dismissal. On 5th July, 2001 identical representation was submitted by the appellant before the said Chief Executive Officer. The appellant herein thereafter filed a writ petition being WP No. 6974 (W) of 2003 after lapse of almost 9 years from the date of dismissal.
The said writ petition was taken up for hearing before a learned Judge of this Court on 29th April, 2010 when the learned Advocate of the appellant herein prayed for leave to take recourse to the alternative Forum provided under the West Bengal Co-operative Societies Act including the filing of a representation before the Assistant Registrar, Co-operative Societies Hooghly. Considering the 3 aforesaid submissions, learned Single Judge disposed of the writ petition by granting leave to the said appellant herein to avail of the alternative Forum.
Pursuant to the aforesaid leave granted by this Court the appellant herein filed the appeal before the Assistant Registrar of Co-operative Societies, Hooghly on 12th May, 2010. The Deputy Registrar of the Co-operative Societies, Hooghly ultimately disposed of the aforesaid appeal on 3rd June, 2010 by directing the appellant herein to prefer the appeal against the order of dismissal dated 17th November, 1994 to the General Body of the Bank and the said General Body of the Bank was also directed to dispose of the appeal of the appellant in accordance with law in its general meeting dated 13th June, 2010 treating the said appeal in the miscellaneous agenda.
The relevant extracts from the aforesaid order of the Deputy Registrar Co- operative Societies dated 3rd June, 2010 are set out hereunder :
" After carefully hearing the representation submitted by Sri Debashis Mukherjee in accordance with the judgement passed by Hon'ble Calcutta High Court and after hearing both the parties and carefully considering all the documents submitted so far and in accordance with justice, equity and good conscience on application of mind it is ordered that as per clause 15 (2) of the Appendix to the chapter Vi of the W.B.C.S. Act. 1983 Sri Debashis Mukherjee may prefer to appeal against, the order no.5539/135 P.dt. 17.11.1994 passed by the Chief Executive Officer, Hooghly Dist. Central Coop. Bank Ltd. to the General Body of the H.D.C.C. Bank Ltd. within a week and the General Body of the H.D.C.C.B.Ltd shall dispose the appeal in accordance with law in its General Meeting dt. 13.6.2010 treating it in the Miscellaneous agenda and also communicate the decision with a fortnight from 13.6.2010.
Sd/-
( S. S a r k a r ) 3.06.2010"4
The appeal of the appellant was thereafter placed in the meeting of the General Body of the Bank and General Body Members in the said Annual General Meeting unanimously rejected the said appeal of the appellant herein. The rejection of the appeal was communicated to the appellant by the Chief Executive Officer of the Bank on 25th June, 2010. Challenging the said decision of the General Body of the respondent Bank, the appellant, herein again filed a writ petition being W.P. No. 14751 (w) 2010 before this Court which was ultimately dismissed by the learned Single Judge by the impugned judgement and order dated 10th September, 2010.
Assailing the aforesaid judgment and order passed by the learned Single Judge instant appeal has been preferred by the writ petitioner.
Mr. Milan Bhattacharjee, learned Counsel representing the appellant submitted that the appellant herein was dismissed from service without complying with the requirements as provided in Section 48 (f) of the West Bengal Co-operative Societies Rules 1987 since the appellant was not supplied with the copy of the enquiry report and second show cause notice in respect of penalty proposed.
Mr. Bhattacharjee specifically submitted before this Court that the disciplinary proceedings were conducted against the appellant in clear violation 5 of the principles of natural justice and without complying with the mandatory requirements of Rule 48 (f) of the West Bengal Co-operative Societies Rules, 1987.
Mr. Bhattacharjee further submitted that the order of dismissal was passed by the disciplinary authority without assigning any reason. It has also been submitted on behalf of the appellant that the Appellate Authority also did not furnish any reason while affirming the order of dismissal passed by the disciplinary authority.
Mr. Bhattacharjee specifically urged before this Court that the Appellate authority also failed to take note of the fact that the disciplinary authority while conducting the disciplinary proceedings clearly violated the mandatory provision of Rule 48 (f) of the West Bengal Co-operative Societies Rules. The learned Counsel representing the appellant submitted that non-service of the copy of the enquiry report vitiated the entire disciplinary proceedings.
Rule 48 (f) of the West Bengal Co-operative Societies Rules is set out hereunder:
" To appoint, discharge or to dismiss or to remove employees of the society :
Provided that no employee of a co-operative society shall be dismissed or removed from service except after an inquiry in which he has been informed of the charges against him and given 6 a reasonable opportunity of being heard in respect of those charges, and where it is proposed, after such inquiry, to dismiss or remove him, until he has been given a reasonable opportunity of making representation on the penalty proposed. "
Mr. Bhattacharjee submitted that the disciplinary authority expressed its biased attitude towards the appellant from the stage of initiation of the disciplinary proceedings since the enquiry officer was appointed before allowing the appellant to submit his reply to the charge sheet and as a matter of fact the appellant was called upon to submit his reply to the charge sheet to the enquiry officer.
Mr. Bhattercharjee submitted that the enquiry officer should have been appointed by the disciplinary authority only after considering the reply of the appellant in answer to the charge sheet.
Mr. Bhattacharjee referred to and relied on the following decisions in support of his aforesaid arguments:
1. State of Punjab Vs. V.K. Khanna , AIR 2001 SC 343 paragraphs 21 and 34.
2. Tea Board and Anr. Vs. Rasamoy Roy & Ors , 2008 (1) CHN, Page 1, Paragraphs 22 and 39.
3. Sanjoy Kumar Singh Vs. Union of India , 2002 (2) SLR, Page 266, Paragraphs 13 and 14.7
Mr. Bhattacharjee submitted that the disciplinary authority herein flagrantly violated the aforesaid provision of Rule 48 (f) of the West Bengal Co- operative Societies Rules while dismissing the appellant from service by issuing the final order of punishment in the disciplinary proceedings.
Mr. Bhattacharjee referred to and relied on the following decisions in support of his aforesaid contentions :
1. Amalesh Maity Vs. State of West bengal & Ors. , 2004 (2). CLJ, Page 313, Paragraphs 11,18,24 & 46.
2. Bhabani Adhikari Vs. W.B. State Co-operative Bank Ltd ,2006 (1) CLJ, Page 1, Paragraphs 36,38,54 & 56.
3. Bhabani Adhikari Vs. W.B. State Co-operative Bank Ltd. reported in 2009 (1) CHN, Page 573, Paragraphs 12,15,23,29,33 & 56.
4. Subimal Das Vs. State of West Bengal and Ors., 97 CWN, Page 168, Paragraphs 11 & 15.
Mr. Jayanta Mitra, learned Senior Counsel representing the respondent-bank strongly opposed the aforesaid claims of the appellant herein. Mr. Mitra submitted that the appellant herein at no point of time assailed the order of dismissal on the ground of non-supply of the report of the enquiry officer or due to non-issuance of the second show cause notice or due to non- compliance with Rule 48(f) of the West Bengal Co-operative Societies Rules 1987. 8 Referring to the representations submitted by the appellant on 20th March, 1999 and 5th July, 2001, Mr. Mitra submitted that no complaint was made regarding violation of Rule 48(f) of Rules 1987 in the aforesaid representation by the appellant. Referring to the first writ petition filed on behalf of the appellant herein being W.P. No 6974 (W) of 2003. Mr. Mitra further submitted that the appellant herein did not assail the order of dismissal on the ground that the said appellant had not been given an opportunity of hearing after supply of the report of the enquiry officer or even on the ground that no second show cause notice had been issued before imposition of the penalty of dismissal in terms of Rule 48 (f). Mr. Mitra submitted that the appellant herein also did not question the validity of the dismissal order on the ground of violation of principles of natural justice or failure to comply with Rule 48 (f) of the West Bengal Co-operative Societies Rules 1987 in the appeal filed before the Assistant Registrar of Co- operative Societies, Hooghly pursuant to the leave granted by the learned Single Judge, when the appellant was allowed to withdraw the first writ petition being W.P. No. 6974 (W) of 2003 by the order dated 29th April, 2010.
Subsequently, the appellant herein submitted another appeal before General Body of the respondent-bank pursuant to the direction of the Deputy Registrar of the Co-operative Societies. Mr. Mitra submitted that in the said appeal also appellant herein did not question the order of dismissal as bad and illegal because of violation of principles of natural justice or due to violation Rule 48(f) of the Rules 1987.
9Mr. Mitra submitted that the appellant on the contrary in the said appeal has clearly admitted his guilt by stating therein that no opportunity was given to him to rectify himself.
Referring to the said appeal of the appellant submitted before the General Body of the respondent-bank for consideration in the Annual General Meeting dated 13th June, 2010, Mr. Mitra, learned Senior counsel of the respondent submitted that the appellant herein sought to assail the order of dismissal on the following three grounds :
i) That no major penalty should have been imposed in view of the fact that the amount was small;
ii) That giving caution to the appellant instead of dismissal would have been sufficient.
iii) That the amount stolen had been deposited by the appellant.
After rejection of the appeal by the General Body appellant herein filed the subsequent writ petition being W.P. No.14751 (W) of 2010 wherefrom the present appeal arises.
Mr. Mitra submitted that significantly in the said writ petition also the appellant herein did not challenge the order of the General Body of the 10 respondent-bank on 13th June, 2010 on the ground of failure to supply of enquiry report or even on the ground of non-compliance of the provisions of Rule 48(f) of Rules 1987 before imposing the penalty of dismissal.
Mr. Mitra submitted that in the said writ petition the appellant herein did not even allege that the order of dismissal was passed by the disciplinary authority without giving any opportunity of hearing to the appellant herein. The learned Counsel of the respondent further submitted that the appellant also did not allege in the said writ petition that the order of dismissal was illegal because the same was disproportionate to the offence committed. It has been specifically submitted by the learned Senior Counsel of the respondent that there is no explanation either in the writ petition or even else where as to why the order of dismissal was challenged before this Court after lapse of almost 10 years for the first time in 2003 when the first writ petition being W.P. No. 6974 (w) of 2003 was filed.
Mr. Mitra submitted that the learned Single Judge has rightly rejected the contentions made on behalf of the appellant from the bar for the first time in last 16 years that the order of dismissal was passed in violation of the provision of Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987. 11
Mr. Mitra further submitted that there is no whisper of the alleged infraction of the aforesaid Rule 48(f) either in the pleadings or in the appeal or in any proceeding or representation made earlier on behalf of the appellant herein.
According to Mr. Mitra, learned Single Judge has rightly refused to allow the appellant to rely on Rule 48(f) upon observing that the said appellant gave up his right in this regard in the first writ petition and therefore cannot be allowed to argue the said point in the subsequent writ petition. The learned Senior Counsel of the appellant urged before this Court that the point now raised on behalf of the appellant cannot be decided in absence of necessary pleadings.
Mr. Mitra, learned Senior Counsel of the respondent submits that at no stage the appellant made the aforesaid contentions that the alleged nonservice of second show cause notice in terms of Rule 48(f) has vitiated the disciplinary proceedings or the dismissal order.
Mr. Mitra referred to and relied on the following decisions in support of his aforesaid arguments:
1. Dr. R.K.S. Chauhan and Another Vs. State of U.P. and Others, (1995) Suppl. 3 SCC 688 at 691 ( Paragraphs 3 and 4).
2. Pfizer Ltd. Vs. Mazdoor Congress and others , (1996) 5 SCC 609 at 616 ( Paragraphs 19 and 20).
3. Netai Bag and Others Vs. State of W. B. and Others (2000) 8 SCC 262 at 271-272 (Paragraph 13), 278 ( paragraph 26).12
4. Additional District Magistrate ( City) Agra Vs. Prabhakar chaturvedi and another, (1996) 2 SCC 12 at ( Para-4).
It has been specifically submitted on behalf of the respondent-bank that the issues now raised on behalf of the appellant should also be rejected on the ground of unexplained delay alone. The learned Senior Counsel of the respondent-bank submitted that the aforesaid unexplained delay in assailing the order of dismissal before this Court is fatal to the proceedings initiated by the appellant herein. The said learned Counsel submitted that this Court should refuse to examine the claims of the appellant in view of the unexplained delay alone.
The learned Senior Counsel of the respondent-bank relied on the following decisions in support of his aforesaid arguments :
(1) Gian singh Mann Vs. High Court of Punjab & Haryana and Another, (1980) 4 SCC 266 at 268 (Para 3) (2) State of Maharastra Vs. Digambar, (1995) 4 SCC 683 at 685-686 ( paras 2 and 3), at 686-688 ( paras 7 and 8), at 689-690 ( paras 13 and 14) , at 691 ( para 17), at 692-693 ( paras 19-23) at 694 ( para 26).
(3) S.S. Bala and Another Vs. State of Kerala and others, (2009) 2 SCC 479 at 482 (para 7), 485-486 (para 17).
(4) Regina Vs. Aston University Senatem,Ex-parte Reffy and Another, (1969) 2 QB 538 at 539, 554 ( Placitum F) 555 ( Placitum C)..
13Mr. Mitra, learned Senior Counsel representing the respondent-bank urged before this Court that the appellant is also debarred from agitating the issue with regard to non-service of the second show cause notice under Rule 48(f) of the West Bengal co-operative Societies Rules 1987 as the said appellant should be deemed to have waived his right by not raising the aforesaid issue in the appeals submitted before the appellate authority or in the writ petition filed before this Court. Mr. Mitra submitted that the right granted under rule is for the benefit of the concerned employee, which he is entitled to waive. In the instant case, by not having raised the aforesaid defence earlier for the last 17 years, the appellant would be deemed to have waived his right to agitate the said point forever. Mr. Mitra relied on the decision of the Supreme Court in the case of Rajendra Singh Vs. State of M.P. and Others reported in (1996) 5 SCC 460 at 465 ( Para 6) in this regard. It has also been submitted on behalf of the respondent that non- service of the second show cause notice does not render the proceedings void.
Mr. Mitra, learned Senior Counsel of the respondent submitted that the Court will invalidate an order only if the right remedy is sought by the right person in the appropriate proceeding.
Mr. Mitra also submitted that the Court may, even in respect of invalid act or order, refuse relief to the applicant in the event the said applicant does not deserve the discretionary remedy or the said applicant has waived his right. According to the learned Senior Counsel of the respondent an order, however 14 void, becomes valid for all practical purposes where a statutory time limit expires, after which its validity cannot be questioned. In such cases, Court does not say there can be estoppel against statute or that the void order shall be valid but by cutting all legal remedies it produces that result. The Court may, even in respect of invalid act or order, refuse relief to the applicant because of his lack of standing because he does not deserve discretionary remedy, because he has waived his rights, or for some other legal reasons. Thus, an order, however void, becomes valid for all practical purposes where a statutory time limit expires, after which its validity cannot be questioned. In such cases, Court does not say there can be estoppel against statute or that the void order shall be valid, but by cutting off legal remedies it produces that result. In such cases, the measure of the Courts attitude is that it disallows the party to urge his point at all, so that it has no more any occasion to decide it.
Mr. Mitra referred to and relied on the following decisions in support of his aforesaid contentions :
i. AIR 1956 Cal 470 (Jupiter Insurance Co. Ltd Vs. Corporation of Calcutta) (Paragraph 14) which has been approved in the subsequent decisions in AIR 1988 SC 205 (Prasun Roy Vs. The Calcutta Metropolitan Development Authority) and (1994) 6 SCC 485 (State of Rajasthan Vs. Puri Construction Co. Ltd. and Another).
ii. (1996) 6 SCC 445 paragraphs, 7,9&10 (State of Rajasthan and others Vs. D.R. Laxmi and Others) 15 Mr. Mitra also relied on the passages from the pages 307 to 309 of the "The Administrative Law" by Wade and Forsyth, Eighth Edition.
On behalf of the appellant, the learned Counsel sought to re-open the entire issues starting from the appointment of the enquiry officer, the manner of conducting the disciplinary proceedings, imposition of penalty, the non-service of the second Show Cause Notice, violation of principles of natural justice etc. Learned Senior Counsel of the respondent-bank, however, submitted that without raising such issues at the appropriate time, the same have become conclusive and binding upon the appellant. It has been contended on behalf of the appellant that he has approached the Court soon after the decision of the appellate authority i.e. after rejection of the appeal of the appellant by the General Body of the Bank. It has been further contended that the appellate authority should have considered that in terms of Rule 48(f) the second Show Cause Notice has not been given to the appellant and therefore the order of dismissal could not be sustained. It was also urged on behalf of the appellant that the General Body did not consider that the penalty imposed upon the appellant was disproportionate to the offence committed. The learned Counsel of the appellant further contended that the appellate authority viz. The General Body, did not give any reason for its decision as contained in the minutes of the meeting held on 13th June, 2010 which established that the appellate authority had not applied its mind.16
Mr. Bhattacharjee, learned Counsel representing the appellant submitted that the minutes of the Annual General Meeting was signed only by the Chairman and the Chief Executive Officer, being the respondents nos. 4 and 5 herein, whereas the appellate body consisted of its members/delegates who also attended the meeting. Therefore, according to the appellant, the decision cannot be said to be of the General Body of the Members, which constituted the appellate authority and accordingly, there was no decision of the appellate authority at all.
The learned Counsel representing the respondent however submitted that the aforesaid issues raised on behalf of the appellant are wholly mis-conceived and totally devoid of any substance, since none of aforesaid reasons had been agitated in the appeal preferred by the appellant before appellate authority and therefore the appellate authority had no occasion to consider those reasons regarding violation of Rule 48(f) and non-issuance of the second show cause notice.
The learned Senior Counsel representing the respondent-bank submitted that two appeals were submitted on behalf of the appellant after withdrawal of the first writ petition. On 29th April, 2003 appellant herein submitted the first appeal to the Assistant Registrar of Co-operative Societies, Hooghly and the subsequent appeal was submitted before the General Body of the respondent- 17 bank. According to Mr. Mitra, in neither of the aforesaid appeals the appellant herein complained of violation of provision Rule 48(f) as a result the appellate authority was not called upon to consider and decide on the question of non- compliance with Rule 48(f).Referring to the decisions cited on behalf of the appellant, Mr. Mitra, learned Senior Counsel of the Respondent Bank submitted that the Court had set aside the order of dismissal for non-service of second Show Cause Notice as the charged officer had objected to the disciplinary proceeding culminating into imposition of penalty immediately after the enquiry and the decision of the disciplinary authority imposing the penalty. Mr. Mitra submitted that no decision has been cited on behalf of the appellant whereby the Court had set aside the disciplinary proceeding for non- service of the second Show Cause Notice where such issue was never raised or agitated or there was enormous unexplained delay in challenging the order of dismissal.
Mr. Mitra submitted that none of the decisions cited by the appellant has any application in the facts of the present case. It is submitted on behalf of the respondent-bank that Rule 48(f) has been included in the rules for the benefit of the charged employee, which right the said employee is entitled to waive. According to Mr. Mitra, in the facts of the instant case, appellant would be deemed to have waived his right under Rule 48(f) by not having challenged the order of dismissal on such ground. The plea of the appellant regarding violation 18 of principles of natural justice is an argument of desperation according to the learned Senior Counsel of the respondent-bank.
Mr. Mitra submitted that the appellant had literally admitted his mis-deeds and asked for condonation on compassionate ground which would appear from the appeal submitted before the General Body of the respondent -bank. Mr. Mitra also submitted that the appellant should not be permitted to raise the aforesaid issue regarding violation of principles of natural justice at this late stage of the proceedings when the said appellant consciously did not raise the same at any stage, whether before this Court or before the authority. The learned Senior Counsel of the respondent - bank submitted that the contention of the appellant that the appellate authority did not apply its mind in hearing the Appeal, since the decision was signed only by respondent nos. 4 and 5 and not by all the members present at the said meeting is an argument devoid of any merit and is liable to be rejected out right.
Mr. Mitra submitted that in the Annual General Meeting which records and declares the decision of the entire body of members, the minutes are always signed on their behalf by the Chairman.
19Mr. Mitra further submitted that as per the provision of Rule 25 of the West Bengal Co-operative Societies Rule, 1987 the minutes of such General Meeting is required to be drawn up and signed by the Chairman of the meeting within seventy two hours from the time when the meeting terminates. Mr. Mitra therefore, submitted that it is absurd to allege that the minutes of the Annual General Meeting of the respondent-bank are required to be signed by all the members present in the said meeting.
Mr, Mitra further submitted that in the instant case the decision recorded in the minute clearly shows that all the members unanimously took the said decision after considering the grounds mentioned in the appeal filed on behalf of the appellant.
Mr. Mitra submitted that the grounds mentioned in the appeal filed by the appellant were considered by the appellate authority i.e. General Body of the respondent-bank and the said appellate authority by the reasoned order rejected the appeal submitted by the appellant herein.
Mr. Tapan Mukherjee, learned Additional Government Pleader submitted that the claims of the appellant herein cannot be examined at this stage on the ground of delay alone. Mr. Mukherjee further submitted that after lapse of almost 17 years this Court cannot examine the validity and legality of the claims of the 20 appellant herein and the appeal should be dismissed on the ground of inordinate unexplained delay alone.
Having heard the learned Counsel of the respective parties and going through the available documents we find that the appellant herein was undisputedly placed under suspension by the order dated 17th June, 1993 and subsequently the said appellant was dismissed from service pursuant to the resolution of the Board of Directors of the respondent-bank dated 17th November, 1994. The said order of dismissal was also communicated to the appellant herein on 17th November, 1994. Most surprisingly the appellant did not question the validity and legality of the aforesaid order of dismissal for a considerable period of almost four and half years. On 25th March, 1999 for the first time the said appellant submitted a representation before the Chief Executive Officer of the respondent- bank. The said representation is set out hereunder :
"To The Chief Executive Officer, Hooghly District Central Co-operative Bank Ltd..
Arambagh Branch, District - Hooghly.
Sub : Challenging the illegal order of dismissal.
Sir, I beg to state that I have been made a scape-goat and has been false implicated under the charge of misappropriation of money and finally order of dismissal was communicated which is absolutely bad in law and I tender my protest against such purported, motivated and illegal order. I have presented my case before the enquiry office but it was very surprising that the enquiry officer has held enquiry and submitted charge sheet on the same day, as if, every thing has been previously settled. So, I request you, to consider my case afresh for the end of justice.
Yours faithfully.21
Dated: 25.03.1999 Sd/-
Debasis Mukherjee) "
The appellant thereafter again remained silent for more than two years four months and made the identical representation on 5th July, 2001. In the aforesaid representation the appellant did not even allege that the report of the enquiry officer was not supplied to the said appellant or there was any violation of Rule 48(f) of the Rules 1987 by the respondent-bank while imposing the punishment of dismissal. The appellant remained silent for a period of 2 years and thereafter filed a writ petition before this Court in the year 2003 being W.P. No. 6974 (W) of 2003. After a lapse of almost 7 years on 29th April 2010 the aforesaid writ petition was taken up for consideration by the learned Judge of this Court when the Senior Counsel of the appellant herein prayed for leave of the Court for taking recourse to the alternative Forum provided under the West Bengal Co-operative Societies Act 1987. Considering the aforesaid prayer, learned Single Judge permitted the appellant herein to withdraw the writ petition upon granting leave to avail the alternative remedies including the filing of a representation before the authority. In the said writ petition also it was not mentioned by the appellant that the order of dismissal was wrong and invalid since the provisions of Rule 48(f) of the Rules 1987 were not complied with before imposition of the penalty of dismissal. In any event, pursuant to the aforesaid leave granted by the learned Single Judge an appeal was preferred before the Assistant Registrar of Co- operative Societies, Hooghly by the appellant herein. In the aforesaid appeal the appellant again did not question the validity of the dismissal order on the ground 22 of violation of principles of natural justice or even on the ground of non- observance of the provisions of Rule 48(f) of the Rules 1987. The said appeal was thereafter disposed of by the Deputy Registrar of Co- operative Societies, Hooghly on 3rd June, 2010 when liberty was granted to the appellant to prefer the appeal against the order of dismissal dated 17th November, 1994 to the General Body of the respondent-bank. The appellant thereafter submitted his appeal before the General Body wherein the said appellant again did not challenge the order of dismissal on the ground of violation of Rule 48(f) of the Rules 1987 before imposition of penalty of dismissal. As a matter of fact, in the said appeal the appellant virtually admitted his guilt upon making a specific submission that no opportunity was granted to him to rectify his conduct. The relevant extracts from the said appeal of the appellant submitted before the General Body of the respondent-bank are set out hereunder:
" *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** ***
(V) The Disciplinary Authority has also passed the order with the major punishment without considering the fact, that as to whether the caution was given for rectification, by the concerned higher officer of the Bank.
(VI)The applicant state admittedly the alleged amount has already been deposited by the applicant, accordingly the applicant has been punished in both the ways.
(XI) I humbly state that I was not given the opportunity to rectify myself by imposing minor punishment for such uninvited acts of commission of offence.
(XII) I humbly state that I had no willful latches which has been held due to my ignorance and beyond my control.
*** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** "
23
After the rejection of the aforesaid appeal by the General Body of the respondent-bank, the appellant filed another writ petition being W.P.No. 14751 (W) 2010 which was disposed of by the impugned judgment and order under appeal passed by the learned Single Judge.
The aforesaid writ petition was filed on the following grounds :
"I. For that the concerned respondent specially, respondent No.3 being the statutory authority while passing the order in shifting the responsibility ought to have looked into the direction passed by the Hon'ble High Court.
II. For that the impugned order passed by the respondent No.3 (as Annexure P/8 to the petition) in contrary to the spirit of the order of the Hon'ble High Court, as such the same is non application of mind. III. For that the respondent No.3 being the authority while passing the impugned order in shifting the responsibility knowing the fact well that the Chairman of the Bank is the Chairman of the General Body cannot have the right to take the decision, as such the purported decision is wholly illegal, bad and violation if the principles of natural justice.
IV. For that the entire action as well as the impugned order passed by the respondent No.3 (as Annexure P/8 to the petition) and the purported decision of the General Body *as Annexure P/9 to the Writ petition) is the violation of the principles of natural justice. V. For that as a whole, the acts and activities on the part of the concerned respondent is otherwise bad, illegal and not sustainable in the eye of law."
Surprisingly the appellant again did not challenge the order of dismissal on the ground of violation of Rule 48(f) of the West Bengal Co-operative Societies Rules 1987. There is no whisper in the aforesaid writ petition regarding the alleged violation of Rule 48(f) by the respondent-bank while imposing the penalty of dismissal. Only at the time of hearing of the aforesaid writ petition being W.P.No. 14751(w) 2010 the learned Counsel of the appellant raised the aforesaid 24 point regarding the violation of Rule 48(f) before imposing the major penalty of dismissal from service for the first time after lapse of almost 16 years from the date of issuance of the order of dismissal and that too in absence of any specific pleading in the writ petition in this regard.
In the aforesaid circumstances, this Court will have to consider whether the appellant should be allowed to urge the aforesaid point at this stage which was not raised by the said appellant before the authorities at any point of time and was also not specifically mentioned in the writ petitions filed before this Court. The appellant herein admittedly did not raise the aforesaid issues consciously for more than 16 years either before the competent authority of the respondent-bank or before this Court as a result whereof, the said appellant should be deemed to have waived his right to agitate the said point at any subsequent stage.
In the Case of Rajendra Singh (Supra) Hon'ble Supreme Court at paragraph 6 observed :
"6. *** *** *** *** *** *** *** *** *** *** Even in the case of violation of a mandatory provision, interference does not follow as a matter of course. A mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of the public cannot be waived by him. *** *** *** *** *** *** *** *** *** *** "25
We may quote relevant passage from the Administrative Law by Wade and Forsyth, 8th edition page 307 in this regard. The relevant extracts from page 307 of the aforesaid book are set out hereunder :
" *************************** The Court may hold that the act or order is invalid, but may refuse relief to the applicant because of his lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason, In any such case the void order remains effective and, must be accepted as if it was valid. It seems also that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid for practical purposes is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result *******************************."
The aforesaid issue was also considered by the Supreme Court in the Case of State of Rajasthan Vs D.R. Laxmi (Supra) thus :
"10. *** *** *** Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidate or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances."
Justice P.B. Mukharji in the case of Jupiter Insurance Company Ltd. (Supra) observed:
"14. It will be seen from this case what the Court does. It does not decide the question of competence of the reference. In fact it does not at all go into the question of statutory disability in this respect, there is no difference between a person and a corporation. It does not say that there can be any estoppel against statute or consent will create statutory capacity where there is none, as indeed no Court can say it either in respect of a person or corporation. In the words of the Lord chancellor which I have just quoted the Court says " The claimant cannot now be heard to make the objection...........even if the objection might have prevailed if taken in due time". In other words the measure of the Court's attitude is that it disallows the party to urge his point at all, so that cases what the Court does is 26 not to pronounce on question whether the award or the arbitration proceeding was void but it prevents the point being taken by a party to challenge the award if being aware of the disability of the other party he did not take such objection on that ground at the stage when the matter was referred or submitted to arbitration. There is no reason why such principle not be applied here."
Aforesaid decisions were subsequently approved by the Supreme Court in the Case of Prasun Roy Vs The Calcutta metropolitan Development Authority reported in AIR 1988 SC 205 and in the case of State of Rajasthan Vs Puri Construction Co. Ltd and Another reported in AIR 1994 (6) SCC 485.
In the present case we also do not find any reason why the aforesaid principles should not be applied. The appellant herein did not challenge the order of dismissal issued by the disciplinary authority on the ground of violation of Rule 48(f) or on account of non-supply of the enquiry report in due time. This Court could examine the aforesaid objections if the same were taken in due time and not after lapse of almost 17 years. This court is not inclined at all to examine the aforesaid questions after lapse of the considerable period of almost 17 years. The learned Counsel of the appellant urged before this Court that the General Body of the appellant bank rejected the appeal preferred by the appellant herein without assigning any reason and the same is a glaring instance of total non- application of mind. However, on going through the records we find that all the members of the General Body of the respondent-bank, who were present in the said meeting, unanimously passed the resolution rejecting the appeal preferred by the appellant herein upon proper consideration of the grounds mentioned in 27 the said appeal. On examination of the extracts of the aforesaid unanimous resolution passed by the General Body of the respondent-bank in its meeting held on 13th June, 2010, we find that the members of the General Body of the respondent-bank, who were present at the said meeting, rejected the appeal preferred by the appellant herein mainly on the following grounds:
1. "The appellant had admitted his guilt.
2. Dishonesty has been proved by admission and such dishonesty was pertaining to the money of a bank. In such circumstances, dismissal of the appellant from the services of the bank was just and proper and not a disproportionate punishment."
The members of the General Body present in the said meeting therefore refused to reinstate the appellant in the service of the bank. All the members present in the said meeting unanimously decided that a person like appellant herein should not be reinstated in service.
Thus, all the grounds mentioned in the appeal by the appellant were specifically considered by the appellate authority namely, the members of the General Body of the respondent Bank and therefore, no exception could be taken to the decision of the appellate authority on the ground of non-application of mind as has been erroneously alleged on behalf of the appellant. 28
One other objection was taken on behalf of the appellant that all the members present at the said meeting of the General Body of the respondent-bank did not sign the minutes of the meeting of the General Body which, in our opinion, is devoid of any merit.
Mr. Mitra, learned Senior Counsel of the respondent-bank rightly submitted before this Court that as per the provision of Rule 25 of the West Bengal Co- operative Societies Rules, 1987 the minutes of such General Meeting is required to be drawn up and signed by the chairman of the Meeting within seventy two hours from the time when the meeting terminates.
On examination of the records we find that the said General Meeting was held on 13th June, 2010 and in compliance with Rule 25 of the said Rules of 1987, the Chairman of the meeting signed the minutes of the meeting on 15th June, 2010 i.e. within the prescribed time limit of seventy-two hours. Minutes of the General Meeting are not required to be signed by all the members of the General Body.
We are not at all inclined to examine the issues raised on behalf of the appellant regarding non-observance of Rule 48(f) of the said Rules of 1987 before imposition of major penalty of dismissal from service and non-compliance with the principles of natural justice, since the aforesaid issues have been raised for the first time from the bar after lapse of almost 16 years. The aforesaid 29 unexplained inordinate delay is a complete bar for adjudication of the issues raised by the appellant herein, and more so, in the absence of proper pleadings. For the reasons, discussed herein above we do not find any infirmity and or illegality in the decision of the learned Single Judge and therefore we find no scope to interfere with the impugned judgment and order under appeal passed by the learned Single Judge.
In the aforesaid circumstances, this appeal stands dismissed, as we do not find any merit in the same.
In the facts of the present case, there will be however no order as to costs. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] Shukla Kabir (Sinha), J.
I agree.
[SHUKLA KABIR (SINHA), J.]