Calcutta High Court (Appellete Side)
Md. Salauddin Midda vs The State Of West Bengal & Ors on 18 August, 2017
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
18.8.2017
4
AKD
W.P. 19656(W) of 2017
Md. Salauddin Midda
-vs-
The State of West Bengal & Ors.
Mr. Biswarup Bhattacharya,
Mr. Dipayan Kundu
... for the Petitioner
Mr. Pradip Kr. Roy,
Ms. Shraboni Sarkar
... for the State
Mr. Uday Sankar Chattopadhyay,
Mr. Suman Sankar Chattopadhyay,
Ms. Snigdha Saha
... for the Respondent No. 2
The petitioner has filed the present writ petition thereby assailing the suspension order dated 19th January, 2010 issued by the Secretary, Babla S.K.U.S. Ltd., North Galsi, Burdwan.
Mr. Bhattacharya, learned Advocate appearing for the petitioner, submits that the petitioner was placed under suspension by the Secretary of the said Society on 19th January, 2010 on the following grounds :
"1) An amount of Rs. 50,000.00 has been taken from the huge amount of cash balance of 2004-05 and this has been taken from P/F account by the then Manager. No B.D.O. resolution has been found in this effect.
2) In the daily deposit mobilizastion scheme an amount of Rs.
89,375.00 was given excess to the depositor. Moreover, Rs. 7,300.00 & Rs. 3,080.00 have been withdrawn but no such deposit was credited.
3) As per C.B. page no. 393 & 377, two payments viz Rs. 25,000.00 and Rs. 10,000.00 were made on 10.01.2006 and 31.12.2005 respectively which are apprehended a defalcation by the enquiring officers of the A.R. Co- operative Societies Burdwan -I Rang.
In view of the above I am directed by the Assistant Registrar of Co-
operative Societies, Burdwan -I Range to state why no action will be taken against you under 'APPENDIX TO CHAPTER VI' as laid down under 2 'Conditions of Services' ub 14(ii). Your services have also been placed under suspension under 16(b) of the Chapter referred to on and from the date of issue of this letter till the final disposal of the case."
Pursuant to the F.I.R. dated 14th August, 2009 lodged by the said Society, a criminal case was initiated under Sections 420/409/120B of the I.P.C. before the learned Judicial Magistrate, 5th Court, Burdwan. Mr. Bhattacharya further submits that pursuant to the judgment and order delivered on 12th July, 2016 in the Criminal Case being Case No. G.R. 1284 of 2009/T.R. No. 235 of 2014 (State -vs- Ehsaan Middya @ Ehisaan Middya and Salauddin Middya), the petitioner was acquitted in the said criminal proceedings. The operative portion of the judgment and order is quoted below :
"that the accused persons namely Ehsaan Middya @ Ehisaan Middya and Salauddin Middya are found not guilty for the offence punishable under Sections 420/409/120B of the Indian Penal Code and accordingly they are acquitted from this case under Section 248(1) of the Code of Criminal Procedure 1972.
The accused persons are released from their respective bail bonds."
Thereafter the petitioner made a representation on 28th October, 2016 before the said Society to re-instate him to his said post thereby withdrawing the suspension order dated 19th January, 2010. Thereafter since the authority was sitting tight over the petitioner's representation, therefore, the petitioner also approached before the Registrar of the Co-operative Societies. Thereafter a Dispute Case being Dispute Case No. 3 of 2012-13 between Secretary, Babla Samabay Krishi Unnayan Samity Ltd. -vs- Salauddin Middya & Ors.) has been filed before the learned Arbitrator. Thereafter the learned Arbitrator passed an award on 7th June, 2013. Some portion of the award is quoted below :
"Dispute case no. 3 (three) of 2012-13 between Secretary, Babla Samabay Krishi Unnayan Samity Ltd. (plaintiff) versus Salauddin Middya S/O Ehasan Middya @ Ebisan Middya and seven others (defendants) was started by the undersigned as Arbitrator appointed U/S 102 of West Bengal 3 Cooperative Societies Act 2006 on 22-8-2012 vide order no. 3281 dt. 20-7-12 of the Depute Registrar of Cooperative Societies, Burdwan-I Range. In the plaint the plaintiff showed a huge amount of money of Rs. 2382033/- defalcated by posting improper entry in cash book by the then accountant Salauddin Middya alongwith unauthorised act of the then Board of Directors.
The case heard on 05/12/12. 24/12/12, 09/01/13, 06/02/13, 27/02/13, 14/03/13 in terms of section 103 of West Bengal Cooperative Societies Act 2006. During hearing the case original cash book, personal loan ledger, General Ledger, Socy's resolution meeting book, some pass book account of depositors (documentary evidences) were wanted from the plaintiff for verification the allegation raised against the defendants in the plaint. But the plaintiff (Babla Samabay Krishi Unnayan Samity Ltd.) failed to produce the documentary evidences to prove the allegation raised in the plaint.
Xerox copy of audit report for the periods from 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 was submitted by the plaintiff by which allegations raised in the petition are not established. The defendants submitted argument letters against the allegation shown in the petition made by the plaintiff.
After conclusion of hearing of the case, award is hereby being given in accordance with justice, equity and good conscience in terms of Rule 171 of West Bengal Cooperative Societies Rules 2011 as under :-
Any relief as claimed in the plaint can not be given to plaintiff. The case is disposed of."
Since the Society was sitting tight over the award passed by the learned Arbitrator, therefore, the petitioner without finding any alternative approached before the Hon'ble Court thereby filing a writ petition being W.P. No. 29614(W) of 2016. That writ petition was disposed of on 31st January, 2017 thereby directing the respondent no. 3, the Registrar of Co-operative Societies, Government of West Bengal, to take a decision in accordance with law in respect of the petitioner's representation dated 28th October, 2016 within a period of eight weeks from the date of communication of this order after giving an opportunity of hearing to the petitioner and the Babla Samabay Krishi Unnayan Samity Limited, Burdwan or their authorised representative and 4 communicate the decision to the parties within one week. Pursuant to the said order, hearing was held by the Registrar of Co-operative Societies, Government of West Bengal and vide his Order dated 28th April, 2017, the Registrar of Co-operative Societies, Government of West Bengal directed the respondent Society to comply with the decision as follows :
1. The order of suspension issued by the Respondent no. 2 Babla SKUS Ltd. against the Petitioner Md. Salauddin Middya shall be withdrawn by the said society forthwith upon communication of this direction and the Petitioner shall be reinstated;
2. The Respondent No. 2 Babla SKUS Ltd. shall also take necessary action as per Clause 16(e) of the Appendix to Chapter V of the West Bengal Cooperative Societies Rules, 2011 after withdrawal of suspension and reinstatement of service of the Petitioner.
3. The Petitioner, after his reinstatement shall act in strict adherence of the provisions of the West Bengal Cooperative Societies Act, 2006 and Rules made thereunder with fullest observance of integrity and financial propriety."
Since the respondent Society was sitting tight over the Registrar's decision, therefore, the petitioner without finding any alternative again made a representation on 11th May, 2017 before the Secretary, Babla Samabay Krishi Unnayan Samity Limited, North Galsi, Burdwan thereby praying, inter alia, for compliance of the Registrar's direction thereby taking necessary steps as per Clause 16(e) of the Appendix to Chapter - V of the West Bengal Co-operative Societies Rules, 2011 after withdrawal of suspension and reinstatement of the service of the petitioner. Since the Society is not paying any heed to the petitioner's representation, therefore, the petitioner without finding any alternative again approached before this Court thereby filing the present writ petition.
On the last occasion, this Court directed Mr. Chattopadhyay to comply with the direction given by the Registrar of the said Co-operative Society vide his letter dated 28th April, 2017.
On the last occasion at that juncture, Mr. Chattopadhyay prays for some time to take instruction.
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Today when the matter is taken up for hearing, Mr. Chattopadhyay, with this usual fairness, submits that the Society has already filed an appeal before the learned Sessions Court against the judgment dated 12th July, 2016. Therefore, Mr. Chattopadhyay submits that since the appeal has already been preferred against the judgment dated 12th July, 2016 passed by the learned Court of Judicial Magistrate, 5th Court, Burdwan, therefore, unless the appeal is decided, the respondent Society should not be directed to reinstate the petitioner thereby withdrawing the suspension order.
Mr. Pradip Kr. Roy, learned Advocate appearing for the State respondents, submits that the respondent Society is under obligation to comply with the direction passed by the Registrar of the Co-operative Society in his decision dated 28th April, 2017 as per direction of this Hon'ble Court's order dated 31st January, 2017 in W.P. No. 29614(W) of 2016. Mr. Roy further submits that since the respondent Society failed to challenge the decision of the Registrar of the Co- operative Societies dated 28th April, 2017, therefore, the respondent Society is under obligation to comply with the direction passed by the Registrar of the Co-operative Societies in his order dated 28th April, 2017.
Considering the submissions as advanced by the learned Advocates for the respective parties and after perusing the records, it is evident from the records that the petitioner has been acquitted from the said criminal case by virtue of the judgment delivered on 12th July, 2016. It is also evident from the records that the award also passed on 7th June, 2013 by the learned Arbitrator in Dispute Case No. 3 of 2012-13 thereby directing the Society as quoted above. Court also cannot ignore the fact that pursuant to the Court's order, hearing was held by the Registrar of the Co-operative Societies, Government of West Bengal and vide his order dated 28th April, 2017 the Registrar of the Co-operative Societies, Government of West Bengal directed the respondent-Babla Samabay Krishi Unnayan Samity Limited to withdraw the suspension order thereby reinstate the petitioner. It was also directed by the said Registrar to the respondent- Babla Samabay Krishi Unnayan Samity Limited to take necessary action as per Clause 16(e) of the Appendix to Chapter - V of the West Bengal Co-operative Societies Rules, 2011 after withdrawal of the suspension and reinstatement of the service of the petitioner. 6
Considering the above discussion, I direct the respondent no. 2, Babla Samabay Krishi Unnayan Samity Limited, North Galsi, Burdwan, to comply with the direction passed by the Registrar of the Co-operative Societies on 28th April, 2017 without any further delay but positively within a period of four weeks from the date of communication of this order.
Needless to mention that in the event the Society succeeds in the pending appeal being Criminal Appeal No. 05 of 2017 before the learned Session Judge, Burdwan, then the Society is at liberty to take steps for recovery of the amount from the petitioner.
With this direction, this writ petition is allowed.
However, There will be no order as to costs.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
( Samapti Chatterjee, J. ) 7