Madhya Pradesh High Court
Zila Sahkari Kendriya Bank Maryadit ... vs Principal Secretary The State Of Madhya ... on 3 May, 2011
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 3946 of 2011
Zila Sahkari Kendriya Bank
Maryadit, Hoshangabad
- V/s -
State of MP and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Smt. Shobha Menon, Senior Advocate, with Mrs.
M.P.S. Chuckal for the petitioner.
Shri J.K. Jain, Dy. Advocate General, for respondent No.1.
Shri R.N. Singh, Senior Advocate, with Shri Gagandeep
Singh for respondent No.2.
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Whether approved for reporting: Yes / No.
ORDER
03/05/2011 Zila Sahkari Kendriya Bank Maryadit, Hoshangabad, a Co- operative Society registered under the M.P. Co-operative Societies Act, 1960, has filed this writ petition under Article 226 of the Constitution through its Director assailing an order-dated 28.2.2011 - Annexure P/1, by which one Shri Ravindra Kumar Dubey, who is holding the post of General Manager/Chief Executive Officer of the petitioner/bank is transferred from Hoshangabad to Apex Bank, Headquarters at Bhopal. 2- Challenge to the order of transfer is made by the Bank in question mainly on the ground that Shri Ravindra Kumar Dubey has been appointed in accordance to the requirement of section 49-E of the M.P. Co-operative Societies Act on the post of CEO, his appointment is after following the guidelines laid down by the Reserve Bank of India 2 and on his fulfilling the criteria of being a person fit and proper to be appointed to the said post. According to the petitioner Shri Ravindra Kumar Dubey is substantively an employee of respondent No.2's establishment and on his appointment as a CEO, he has been sent on deputation for a period of five years. By filing documents - Annexure P/2, it is indicated that Shri Ravindra Kumar Dubey fulfils all the criteria required for being appointed as CEO and after due selection and concurrence and on getting no objection from respondent No.2, he has been appointed. It is stated that Annexure P/7 is the order by which he has been sent on deputation to the petitioner bank and as the period of deputation is fixed for five years, the tenure of deputation cannot be unilaterally curtailed by respondent No.2 and Shri Ravindra Kumar Dubey withdrawn without the consent and approval of the petitioner bank, which had given its consent for appointment of Shri Ravindra Kumar Dubey on deputation. Raising a contention that the action of respondent No.2 in ordering the transfer is infact an order of repatriation of a deputationist, the deputation agreement is a tripartite agreement and, therefore, the same could not be withdrawn in the manner done, this writ petition is filed by the petitioner.
3- Notices were issued and an interim order of stay was granted by this Court. By filing a reply, respondent No.2 has raised an objection, preliminary in nature, with regard to tenability of this writ petition at the instance of the petitioner bank. It is stated that if Shri Ravindra Kumar Dubey had any objection with regard to the impugned action, he should have filed the writ petition and in the absence of Shri Ravindra Kumar Dubey putting forth any grievance it is stated that at the instance of the petitioner bank, the writ petition is not maintainable. It is further stated that remedy is available under sections 55 read with 56 of the M.P. Co-operative Societies Act and at the instance of the petitioner bank it is stated that the writ petition cannot be entertained. That apart, it is pointed out that in the agreement for sending the employee i.e... Shri Ravindra Kumar Dubey, on deputation is Annexure P/7, Clause 4 thereof contemplates a provision for withdrawal of the order of 3 deputation by respondent No.2 Bank in case acts of misconduct and irregularities are committed by Shri Ravindra Kumar Dubey. Inviting my attention to the complaints and the acts of commission and omission committed by Shri Ravindra Kumar Dubey, Shri R.N. Singh - learned Senior Advocate, submitted that respondent No.2 as per the terms and conditions of deputation has withdrawn the order of deputation and the petitioner bank cannot have any grievance for the simple reason that the power for the same is conferred on respondent No.2/bank by virtue of Clause 4, of the terms and conditions of deputation. By placing reliance on the documents - Annexure R/2/1 onwards, filed alongwith the reply, learned Senior Advocate appearing for respondent No.2 submits that Shri Ravindra Kumar Dubey has committed serious misconduct and irregularities and, therefore, as the petitioner bank is not taking any action, respondent No.2 has withdrawn the deputation. Accordingly, contending that the petition has to be dismissed as it is not maintainable at the instance of the petitioner bank, I.A.No.5571/2011 is filed seeking dismissal of the writ petition.
4- To the preliminary objection, petitioner/bank has filed a detailed reply and Smt. Shobha Menon, learned Senior Advocate, argued that petitioner bank is an aggrieved person as the deputation of its CEO, which is for a fixed period of 5 years, is being withdrawn unilaterally and, therefore, when the petitioner bank is aggrieved, it has the locus standi to file the writ petition and the preliminary objection raised is unsustainable. Accordingly, learned Senior Advocate submits that the writ petition is maintainable and the same cannot be dismissed on the ground canvassed. Inviting my attention to the law laid down in the cases of: Union of India through Government of Pondicherry and another Vs. V. Ramakrishnan and others, AIR 2005 SC 4295; and, P. Lal Vs. Union of India and Others, (2003) 3 SCC 393, learned Senior Advocate submits that the preliminary objection be rejected. 5- I have heard learned counsel for the parties and perused the records.
46- From the records, it is clear that the order impugned is an order of transfer, transferring Shri Ravindra Kumar Dubey from the petitioner bank to another establishment. Even though Shri Ravindra Kumar Dubey is on deputation and it is the case of the petitioner bank that the deputation agreement, which is infact a tripartite agreement, is being withdrawn unilaterally without the consent of the petitioner back and, therefore, the same is illegal.
7- However, on a perusal of the order of deputation and the terms and conditions of deputation, as contained in Annexure P/7, it is seen that Clause 4 of the said terms and conditions of deputation read as under:
";fn vkids cSad esa inLFk eq[; dk;Zikyu vf/kdkjh ds fo:) xaHkhj nqjkpj.k@vfu;ferrk,vksa ds izjd.k izdk'k esa vkrs gS rks ftyk cSad Lo;a mu vkjksiksa ds fooj.k lfgr lacaf/kr vf/kdkjh dks fu/kkZfjr vof/k ds iwoZ okfil djus dk fu.kZ; ysdj 'kh"kZ cSad dks voxr djk ldrh gS vFkok 'kh"kZ cSad Lo;a ,sls xaHkhj nqjkpj.k@vfu;ferrk,a Kku esa vkus ij vius laoxZ vf/kdkjh dks lacaf/kr cSad ls gVk ldsxhA "
(Emphasis supplied) A perusal of the aforesaid Clause indicates that if the employee, who is appointed as CEO, is found to have committed act of commission and omission, which may amount to misconduct or irregularity, then liberty is granted to respondent No.2 bank to withdraw the employee from deputation. It is, therefore, clear that Clause 4 of the terms and conditions of deputation does contemplate a provision which gives authority to respondent No.2 to withdraw Shri Ravindra Kumar Dubey from deputation, if it is found that he has committed some irregularity. The documents filed by respondent No.2 vide Annexures R/2/2 onwards, are to show that Shri Ravindra Kumar Dubey had committed irregularities. At this stage, in this writ petition, the correctness or otherwise of these complaints are not to be gone into as Shri Ravindra Kumar Dubey has not challenged these complaints.
58- The only question that is required to be considered is as to whether the contention of the petitioner that the tripartite agreement is unilaterally withdrawn without their consent has force or not? 9- Prima facie the contention of the petitioner that it is a tripartite agreement and it cannot be withdrawn without their consent seems to be unsustainable for the simple reason that Clause 4 gives a right to respondent No.2 to recall Shri Ravindra Kumar Dubey unilaterally if complaints are found against him and in that view of the matter, the contention of the petitioner that the action taken unilaterally is unsustainable, cannot be accepted. That apart, it is not known as to why Shri Ravindra Kumar Dubey, who is the main aggrieved person, is not coming forth to challenge the action. The petitioner bank may have some grievance in the matter of transfer of their CEO, but the main aggrieved person would be Shri Ravindra Kumar Dubey and when the dispute is a co-operative dispute, mainly between Shri Ravindra Kumar Dubey and respondent No.2 bank, the remedy available to Shri Ravindra Kumar Dubey under sections 55 read with 56 of the Co-operative Societies Act, should have been adhered to. That apart, even if the contention of the petitioner that they are aggrieved because of the unilateral action of respondent No.2, is taken note of, then the only objection of the petitioner bank can be that due to withdrawal of Shri Ravindra Kumar Dubey, who is the CEO of the petitioner bank, the same has adverse effect on the working, administration and management of the petitioner bank. If that be so, then the said dispute would be a dispute falling within the purview of Section 64 of the Co-operative Societies Act and the petitioner bank, which is a registered co-operative society under the Act can always raise a dispute under section 64 of the Act, before the competent statutory authority.
10- Taking into consideration the totality of the circumstances and the reasons as indicated hereinabove, this Court finds much force in the preliminary objection raised by respondent No.2. The order of deputation cancelled by respondent No.2 should have been assailed by the person concerned, whose deputation has been cancelled and at the 6 instance of the petitioner bank this Court does not deem it appropriate to interfere in the matter.
11- Even though during the course of hearing Smt. Shobha Menon, learned Senior Advocate, tried to emphasize that the dispute in question does not concern the management or business of the society and, therefore, section 64 may not be applicable, but keeping in view the principle laid down by a Bench of this Court, in the case of Baldeo Kumar Agrawal Vs. Managing Director, M.P. Rajya Laghu Van Upaj Sahakari Sangh Maryadit and another, 1997(2) MPLJ 255, and taking note of the broad interpretation given to the word "business of the society" and also taking note of the fact that the dispute in question can be one said to be touching the Management of the Society due to transfer of its CEO, the arguments advanced by learned Senior Advocate cannot be accepted. The said question can be raised before the Registrar, who is competent to deal with the matter.
12- Accordingly, finding much force in the preliminary objection raised by respondent No.2, the same is upheld. 13- Before parting, it may be clarified that the observations made in this order are only a prima facie assessment of the matter for the purpose of determining as to whether interference should be made exercising extra ordinary jurisdiction in a writ petition under Article 226 of the Constitution or not and, therefore, if the impugned action is challenged by Shri Ravindra Kumar Dubey or the petitioner bank under the statutory provisions, the authorities concerned are free to decide the matter in accordance with law without being influenced by any observations made in this order.
14- Accordingly, the petition stands dismissed.
( RAJENDRA MENON )
JUDGE
Aks/-