Madhya Pradesh High Court
Subhash Pachori vs The State Of Madhya Pradesh on 30 July, 2024
1 WP-7013-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 30 th OF JULY, 2024
WRIT PETITION No. 7013 of 2021
SUBHASH PACHORI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ankur Shrivastava - Advocate for the Petitioner.
Smt. Gulab Kali Patel - Government Advocate for the Respondent/State.
Shri Kapil Duggal - Advocate for the Respondent No.4.
ORDER
The present petition has been filed challenging the order Annexure P-12 constituting a three member inquiry board comprising of Branch Manager, Assistant Accountant and Banking Assistant. The said inquiry board has been constituted in compliance of order dated 22.01.2020 passed by this Court in WP No.28276/2018.
2. Learned counsel for the petitioner has assailed the constitution of inquiry board vide Annexure P-12 on the ground that as per the Human Resources Policy of the respondents No.4 & 5-Bank, the inquiry board has to be constituted comprising of three members, one of which would be holding the rank of Manager, the second member would be holding the rank below medium management Grade I and third member should be the rank of senior management Grade II or above. It is further laid down that the Bank employees holding the rank Signature of senior management two and medium management one respectively as Not Verified Signed by: KRISHNA SINGH noted above would be employees of the Bank.
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3. Learned counsel for the respondents No.4 & 5 does not dispute the aspect that two of the members of the committee constituted vide Annexure P-12 are juniors in rank to the petitioner and do not hold the rank of senior management Grade-II and middle management Grade-1 as provided in the Human Resources Policy Annexure P-14.
4. Vide order dated 13.07.2023, this Court had noted the position that there is no officer available in the Bank holding the position of senior management grade-II and middle management grade-1, who can be inducted as the member of the Board because the petitioner himself is holding a sufficiently senior position and sufficient number of senior officers are not available with the Bank. Noting the said contention, this Court had directed on 13.07.2023 to address the Court with regard to possible alternative methods for dealing with such a situation.
5. Thereafter, the matter was listed again on 22.04.2024 on which date, this Court had directed the Registrar, Cooperative Societies to submit affidavit as to what procedure can be adopted in such case when sufficient number of senior officer is not available to form part of inquiry board. Today, when the matter is taken up for hearing, it is contended by the rival parties that an affidavit of the Registrar has been filed and as per said affidavit, the Registrar has passed an order dated 24.05.2024 in compliance of order passed by this Court in the present petition on 22.04.2024, wherein a three member inquiry board has been constituted by the Registrar comprising one Shri Pankaj Gupta, Cadre Officer of the Apex Bank, Shri Chandra Shekhar Patle, who is Chief Executive Officer and Shri Signature Vinod Dahiya, Accountant, District Central Cooperative Bank, Jabalpur i.e. Not Verified Signed by: KRISHNA SINGH respondents No.4 and 5.
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6. During the course of hearing, it is admitted by counsel for the rival parties that even as per this order passed by the Registrar, Cooperative Societies dated 24/05/2024, one of the officers i.e. Shri Pankaj Gupta, who is Chairman of the Inquiry Board is not an employee of respondents No.4 & 5- Bank and Shri Vinod Dahiya, who is member of the Inquiry Board is placed in the middle management grade-2 whereas the 3rd officer has to be atleast middle management grade-1 or above. The petitioner himself is in the Middle Management Grade II.
7. Learned counsel for the petitioner had relied on relevant portion of the service regulations placed on record as Annexure A-1 to I.A. No.10660/2024, wherein the cadre structure of the respondents No.4 & 5-Bank has been mentioned and from perusal of the said cadre structure, it is evident that the third member of inquiry board i.e. Shri Vinod Dahiya is holding the post of middle management grade-II and not middle management grade-I.
8. Thus, as admitted by the rival parties, even the order passed by the Registrar dated 24/05/2024 does not qualify the requirement of law as per the Human Resources Policy because one of the officers is not an employee of the Bank and one of the officers is below middle management Grade-1. This aspect is admitted by learned counsel for the respondents No.4 & 5 also.
9. Counsel for the rival parties have admitted that now impossible situation has arisen on account of non-availability of officers and even the arrangement made by the Registrar, Cooperative societies does not fulfill the service rules and human resources policy.
Signature Not Verified Signed by: KRISHNA SINGH10. Learned counsel for the petitioner has further objected to inclusion of Signing time: 30-07-2024 04:18:45 4 WP-7013-2021 the officers not employed in the respondents No.4 & 5-Bank because as per human resources policy, the requirement is that the officer should be employee of the Bank for being authorized to be a member of the inquiry board.
11. Heard learned counsel for the parties.
12. In the present case, a very peculiar situation has arisen because as per the service regulations and Human Resources policy, the Enquiry Board has to comprise of members of some specific position and as jointly agreed and admitted by the parties, such 3 Officers are not available in the society in which the petitioner is employed which can constitute the Enquiry board in accordance with the regulations and Human Resources Policy. Only one member is undisputedly available in the society who can constitute the Enquiry Board and other two Officers senior to the petitioner are not available and thus, an impossible situation has been created.
13. The Registrar, Co-operatives Societies has tried to resolve the situation by appointing one member from outside the society i.e, Shri Pankaj Gupta and another Member holding the same rank as the petitioner i.e, Shri Vinod Dahia. These two members do not qualify the requirement of regulations and Human Resources policy in as much as Shri Pankaj Gupta belongs to the Apex Bank of which the petitioner Bank is a member and Shri Vinod Dahiya holds the same rank in cadre structure as the petitioner i.e, Middle Management Grade II, though he holds a different post.
14. The petitioner cannot be allowed to take advantage of this impossible Signature Not Verified situation in the Bank because if the regulations and Human Resources Policy are Signed by: KRISHNA SINGH Signing time: 30-07-2024 04:18:45 5 WP-7013-2021 allowed to be operated strictly as per their provisions, then the petitioner would get a premium out of it by holding up of the disciplinary proceedings against him. This will create impossible situation and the petitioner would be at let up without any disciplinary action.
15. Hon'ble Supreme Court in cases where an impossible situation is created has dwelled on doctrine of impossibility by taking note of latin maxim lex non cogit ad impossibilia--reported in 2011 (7) SCC 639, it has been held as under:-
"3 9 . The court has to consider and understand the scope of application of the doctrines of lex non cogit ad impossibilia (the law does not compel a man to do what he cannot possibly perform); impossibilium nulla obligatio est(the law does not expect a party to do the impossible); and impotentia excusat legem in the qualified sense that there is a necessary or invincible disability to perform the mandatory part of the law or to forbear the prohibitory. These maxims are akin to the maxim of Roman law nemo tenetur ad impossibilia(no one is bound to do an impossibility) which is derived from common sense and natural equity and has been adopted and applied in law from time immemorial. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. (VideChandra Kishore Jha v.Mahavir Prasad [(1999) 8 SCC 266: AIR 1999 SC 3558],Hira Tikkoo v. UT, Chandigarh [(2004) 6 SCC 765: AIR 2004 SC 3649] and HUDA v. Dr. Babeswar Kanhar [(2005) 1 SCC Signature Not Verified 191: AIR 2005 SC 1491].)" Signed by: KRISHNA SINGH Signing time: 30-07-2024 04:18:45 6 WP-7013-2021
16. Further, in Hira Tikkoo Vs. Union Territory, Chandigarh and others reported in (2004) 6 SCC 765, the following has been held by the Hon'ble Apex Court:-
"23. On the same principle and to protect larger public interest, the Chandigarh Administration can be relieved of fulfilling legitimate expectation arising from its allotment of plots on the ground that their development schemes under consideration have been found to be in contravention of the Forest Act and the Aircraft Act. Another legal maxim which can be invoked to their aid is: "Lex non cogit ad impossibilia: the law does not compel a man to do that which he cannot possibly perform."
17. In Huda and another VS. Dr. Babeswar Kanhar and another (2005) 1 SCC 191, the Hon'ble Supreme Court held as under:-
"5 . What is stipulated in clause 4 of the letter dated 30-10-2001 is a communication regarding refusal to accept the allotment. This was done on 28-11-2001. Respondent 1 cannot be put to loss for the closure of the office of HUDA on 1-12-2001 and 2-12-2001 and the postal holiday on 30-11-2001. In fact he had no control over these matters. Even the logic of Section 10 of the General Clauses Act, 1897 can be pressed into service. Apart from the said section and various provisions in various other Acts, there is the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity (see Sambasiva Chari v. Ramasami Reddi [(1898) 8 MLJ 265: ILR 22 Mad 179]). The underlying object of the principle is to enable a person to do what he could have done on a Signature Not Verified Signed by: KRISHNA holiday, on the next working day. Where, therefore, a SINGH Signing time: 30-07-2024 period is prescribed for the performance of an act in a 04:18:45 7 WP-7013-2021 court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that law does not compel the performance of an impossibility. (See Hossein Ally v. Donzelle [ILR (1880) 5 Cal 906: 6 CLR 239].) Every consideration of justice and expediency would require that the accepted principle which underlies Section 10 of the General Clauses Act should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex non cogit ad impossibilia (the law does not compel a man to do the impossible) and actus curiae neminem gravabit (the act of court shall prejudice no man). Above being the position, there is nothing infirm in the orders passed by the forums below. However, the rate of interest fixed appears to be slightly on the higher side and is reduced to 9% to be paid with effect from 3-12-2001 i.e. the date on which the letter was received by HUDA."
18. The law does not force a person to perform impossible act. Here, for conclusion of the Departmental enquiry against the petitioner, some course has to be adopted to wriggle out of the impossible situation.
19. Aid can be taken in the present case from Section 47 (A) of M.P. Co- operative Societies Act, 1960 which reads as under:-
"47-A. Apex society.-(1) The Apex society may, for servicing its constituents and in accordance with its byelaws, perform the following functions:-
(a) safeguard the observance of the co-operative principles: Signature Not Verified
(b) promote and organise co-operative societies and for this purposes, Signed by: KRISHNA SINGH Signing time: 30-07-2024 04:18:45 8 WP-7013-2021 frame model byelaws and guidelines for making various regulation and policies for consideration by the societies:
(c) provide co-operative training, education and information, and propagate co-operative principles:
(d) undertake research and evaluation and assist in preparation of perspective development plans of member societies:
(e) promote harmonious relations between member societies:
(f) help member societies in the settlement of disputes among themselves and between a society and its members.
(g) represent the interest of member societies and lobby for policies and legislation favourable to societies:
(h) undertake business services on behalf of its members:
(i) provide co-operation and management of development services to member societies including participation in board meetings where member societies are invited:
(j) ensure timely conduct of annual audit in member societies:
(k) ensure timely conduct of elections in member societies:
(l) assist member societies in regular conduct of general meetings:
(m) evolve code of conduct for observance by member societies:
(n) evolve viability norms for member societies:
(o) provide legal aid and advice to other member societies:
(p) provide any other service in the interest of member societies." Signature Not Verified
20. The Bank, in the present case is a part of the co-operative system where Signed by: KRISHNA SINGH Signing time: 30-07-2024 04:18:45 9 WP-7013-2021 a primary agricultural society is the primary society. The Central Co-operative Bank is a Central Society of which the primary societies are members and the Apex Society is the M.P. State Co-operative Bank in which the Central Co - operative Banks are members.
21. In the present case, relying on Section 47-A (p), the Apex society is under obligation to provide any other service in the interest of Member society. Therefore, taking note of the doctrine of impossibility in the maxim lex non cogit ad impossibilia, the enquiry can be concluded by appointing in the Enquiry Board, members of M.P. State Co-operative Bank, which is the Apex Society of the Employer Bank of the present petitioner.
22. Consequently, by quashing the impugned order Annexure P-2, the respondent No.2 is directed to constitute an Enquiry Board for conclusion of the Enquiry against the petitioner comprising of three members. All the said three members shall be senior in rank to the petitioner and as far as possible belong to District Central Cooperative Bank, Jabalpur which is the Employer Bank of the Petitioner and in case of non-availability of Senior Officers of the said District Co- operative Bank, the Officer senior in Rank to the petitioner belonging to the Apex society i.e, M.P. State Co-operative Bank can be taken in the Enquiry Board. The Enquiry Board appointed by Order dated 24.05.2024 is held incompetent because one of the members in the said Enquiry Board belongs to the same cadre position as the petitioner.
23. Let the respondent No.2 constitute Enquiry Board within a period of one month from the date of production of certified copy of this Order by any of the Signature Not Verified parties and endeavor be made to conclude the enquiry within a period of two Signed by: KRISHNA SINGH Signing time: 30-07-2024 04:18:45 10 WP-7013-2021 months thereafter.
24.With the aforesaid directions, the petition is disposed of.
(VIVEK JAIN) JUDGE veni Signature Not Verified Signed by: KRISHNA SINGH Signing time: 30-07-2024 04:18:45