Calcutta High Court (Appellete Side)
Kuntal Roy vs The State Of West Bengal & Ors on 14 September, 2016
Author: Harish Tandon
Bench: Harish Tandon
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Coram: Hon'ble Mr. Justice Harish Tandon
WP 12218(W) of 2016
Kuntal Roy
-Vs-
The State of West Bengal & Ors.
With
WP 12221(W) of 2016
Mihir Kumar Mahata
-Vs-
The State of West Bengal & Ors.
Mr. Milan Chandra Bhattacharaya,
Ms. Sulagna Bhattacharya.
.... For the Petitioner.
Mr. L.K. Gupta, Additional Advocate General,
Mr. Santanu Mitra.
.... For the State.
Mr. Soumyajit Das Mahapatra
.... For the Respondent No. 9.
Mr. P.C. Bhattacharyya, Mr. Subhajit Panja .... For the Respondent Bank.
Judgment On: 14/09/2016 The Court:
These two Writ Petitions are taken up together involving common questions of law in order to avoid prolixity of repetition. The salient facts of both the Writ Petitions are enumerated herein below:-
WP 12218(W) of 2016:
The petitioner was selected by Co-operative Service Commission, West Bengal and was appointed as Grade-II Officer in Vidyasagar Central Co-operative Bank Limited, Midnapore. The appointment letter was issued by the Bank on 09.01.2010 and the petitioner joined as Branch Manager of Egra Branch of the said Co-operative Bank. The petitioner joined the service with effect from 19.01.2010 at the head office of the said Co-operative Bank and was transferred to Monglamaro Branch and was further transferred to Egra Branch and was lastly transferred to Gopiballabhpur Branch as Branch Manager with effect from 13.06.2011 to 08.01.2015.
A show cause notice was issued on 02.09.2015 on the basis of an interim report of the Fact Finding Committee pertaining to demand gold loan during his tenure as Branch Manager at Gopiballabhpur Branch having disbursed the same to the persons who are residents outside the jurisdiction of the branch which is in clear violation of the circular dated 02.11.2011. It was further alleged therein that the Appraiser, who is supposed to test gold ornaments and the measurement of the weight in favour of the petitioner and to pack the same in his presence have not been followed as in some cases the weight of the gold ornaments are written more than the physical weight. The other allegation which could appear therefrom was that the gold ornaments were returned to the Appraiser, who came along with the loanee in stead of the delivery of the gold ornaments to the loanee himself.
The petitioner replied on 9th September, 2015 stating that the gold loans were issued to the borrowers by way of transfer to their Savings Bank Accounts upon compliance of KYC. It is further stated that the Appraiser of the Bank took the weight of the ornaments after testing before him, which were kept in the cloth bags duly sealed before him.
The authorities found such explanation to be unsatisfactory and further called upon the petitioner to explain why the disciplinary action should not be initiated as laid down in clause 14 of Appendix 2 Chapter V of the West Bengal Co-operative Societies Rules, 2011. The petitioner sought for an extension of time to file an explanation and ultimately replied the same on 29.02.2016. A complete set of charge-sheet is served upon the petitioner on 07.06.2016 containing articles of charges and the imputation of charges and the documents relied upon issued by the General Manager of the Co-operative Bank. The petitioner acknowledged the receipt of the complete set of charge-sheet on 18.06.2016 and requested the authority to supply the copies of the documents intended to be relied upon.
The Co-operative Bank replied on 22.06.2007 stating that the Bank Authority has further arranged to send one copy of the list of documents being Annexure 'C' to the respective charge-sheets served on the petitioner, which is received by the petitioner by endorsing that no documents mentioned in Annexure 'C' is served. On 23rd June, 2016, the General Manager issued an order appointing an Enquiry Officer to inquire in the charges framed against the petitioner and further appointed a Presenting Officer to assess in carrying out such disciplinary proceeding. On 28.06.2016, the petitioner reiterated his stand of non supply of documents disclosed in Annesure 'C' to the charge-sheet and sought for an extension of time to submit the reply.
At this juncture, the petitioner have come up before this Court by filing the instant Writ Petition challenging the first and second show cause notices as well as the appointment of the Enquiry Officer and the Presenting Officer on the premise that the General Manager has no authority under the law to issue the said show cause notices and the entire exercise of initiating proceeding is an outcome of violation of principle of natural justice.
WP 12221(W) of 2016:
The petitioner was appointed as Grade-III employee in the Co-operative Bank on 23.09.1996 and joined the post on 24.09.1996. The petitioner was posted at Midnapore Head Office as Grade-III employee till 01.10.1996 and was transferred to Keshpore Branch as Supervisor and worked up to 07.08.1998. The petitioner was transferred from time to time and was posted as Accountant in Gopiballabhpur Branch between the period from 25.04.2008 to 12.04.2013. He was, thereafter, transferred to Belpahari Branch as Branch Manager and was re-
transferred as Branch Manager at Gopiballabhpur with effect from 08.01.2015 and worked therein in such capacity till 09.06.2015. The show cause was issued to the petitioner on 2nd September, 2015 on the basis of the report of the Fact Finding Committee alleging irregularities while working as manager in the said branch by issuing huge loans to a person residing outside the jurisdiction of the branch in complete contravention to the circular dated 02.11.2011.
It is further stated therein that the petitioner was not personally present at the time of testing and weighment of gold articles by the Appraiser. The weight of the gold ornaments depicted on the written note is more than the physical weight and the gold ornaments were returned to the Appraiser in stead of loanee. The petitioner replied to the said show cause denying all the charges and / or allegations made against him. The second show cause was issued by the General Manager on 20th January, 2016 having found that the explanation offered earlier is not satisfactory and called upon the petitioner to clarify and explain his conduct and why the disciplinary action should not be initiated under Clause 14 of the Appendix 2 Chapter V of the West Bengal Co-operative Societies Rules, 2011. On the request of the petitioner the time was extended to file reply / explanation which was submitted on 01.03.2016. Subsequently, the petitioner was served with a charge-sheet on 09.06.2016 issued by the General Manager on 07.06.2016 and the petitioner asked for the copies of the documents relied upon by the disciplinary authority. The petitioner was served with the documents indicated in Annexure 'C' of the charge-sheet on 23rd June, 2016. The petitioner prayed for an extension of time to file explanation / reply after consulting the documents. Subsequently, by an order dated 23rd Julne, 2016 the petitioner was communicated that an Enquiry Officer has been appointed so also the Presenting Officer to hold an inquiry.
The petitioner, thereafter, has filed the instant Writ Petition challenging both the show cause notices and the order by which the Enquiry Officer as well as Presenting Officer were appointed.
It is not in dispute that both the Writ Petitioners have been served with the show cause notices and the charge-sheet on identical charges and have challenged the show cause notices on similar grounds.
The challenge is basically founded on two fold premises--
Firstly, the General Manager is not a disciplinary authority and therefore the show cause notice issued by him is per se bad in law;
secondly, there has been a complete violation of the principle of natural justice as the documents relied in the charge-sheet were never supplied.;
thirdly, mere indicating the articles of charges without corroborating statements is vague and is required to be quashed and / or cancelled.
In course of an argument an additional point is urged by the Ld. Advocates representing the respective respondents on the maintainability of the Writ Petition. According to them, the Co-operative Society is governed by the West Bengal Co-operative Societies Act, 2006 and the Rules framed thereunder and therefore is not an instrumentality of the State within the meaning of Article 12 of the Constitution of India. In other words, the respondent bank is neither financially nor functionally nor administratively under the control of the State and therefor a Writ Petition is not maintainable as they do not satisfy the definition of a 'State' or 'other authorities' enshrined under Article 12 of the Constitution of India.
The plea of demurrer taken by the respondents, in my opinion, strikes at the root of the case and should be addressed first. Both the counsels have relied upon the several judgments touching the point whether the Writ Petition can be maintained against the Co-operative Society. It would be appropriate to deal with those judgments first before embarking on the facts involved in the instant case. First of the judgments cited before this Court is a case S.S. Rana -Vs- Registrar, Coop. Societies & Anr. reported in (2006) 11 SCC 634, wherein an identical point was raised whether the Co-operative Bank assumes the character of a State within the meaning of Article 12 of the Constitution of India. In the said report the Branch Manager of the Co-operative Bank faced a disciplinary proceeding under the Kangra Central Co-operative Bank Employees (Terms of Employment and Working Conditions) Rules, 1980 framed under the Himachal Pradesh Co- operative Societies Act, 1968. The Division Bench of the Himachal Pradesh High Court held that the Writ Petition is not maintainable and that is how the matter came up before the Supreme Court. An argument was advanced on behalf of the petitioner therein that the activities of the Co-operative Bank is to lend money to the agriculturists and therefore the case squarely lies within the ratio laid down in the earlier judgment of the Supreme Court in Pradeep Kumar Biswas -Vs- Indian Institute of Chemical Biology reported in (2002) 5 SCC 111. It was further urged that the entire proceeding is per se bad as there was no compliance of the principle of natural justice. On the other hand, the State of Himachal Pradesh argued that the State has no deep and pervasive over the affairs of the society as only one director out of 3 directors are the nominee of the board. The Apex Court proceeded that the said society has not been constituted under an Act and its functions are like any other Co-operative Society being regulated in terms of the provision of the Act and its by laws and the State has no say in the functions thereof. It was further held that the State neither exercises any direct or indirect control over the affairs of the society nor is a majority shareholder except that it can nominate one director out of three. To arrive at the conclusion that the State has a deep and pervasive control, the relevant questions are- How was a society created? Whether it enjoins any monopoly character? Do the functions of society partake to statutory functions or public functions? and can it be characterized as public authority?
The Apex Court further took notice of the other judgments rendered in case of UP State Co-operative Land Development Ltd. -Vs- Chandravan Dubey reported in (1991) 1 SCC 741 and Ramsahan Ray -Vs- Sachiv Samanya Pravandhav reported in (2001) 3 SCC 323 and Nyayagarh Co-operative Central Bank Ltd. -Vs- Narayan Rath reported in (1997) 3 SCC 576 wherein the Writ Petition was held to be maintainable as the co-operative society was created under the Act and the challenge is made to action contrary thereto.
What can be culled out from the S.S. Rana's case that if the co-operative society is not registered and / or created under the Co-operative Act neither the state has a deep and pervasive control over the affairs of the Co-operative nor the State provides a financial and functional support to the society and therefore does not enjoin monopoly status nor if the functions of the society is of public importance and closely related to governmental functions, the Writ Petition cannot lie. However, if the relevant provision of the Act or the Rules governing the society is violated, a Writ Petition cannot be said to be non maintainable.
Identical point arose before the Division Bench of the Supreme Court of which one of the Hon'ble Judge was the author of the judgment rendered in S.S. Rana (supra). In case of Madhya Pradesh State Co-operative Diary Federation Ltd. & Anr. -Vs- Rajnesh Kumar Zaminder & Anr. reported in (2009) 15 SCC 221 wherein all the previous judgments touching the point which is also involved in the instant case was considered and it is held:-
"21. Article 12 of the Constitution of India reads as under:
"12. Definition.--In this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India."
The development of law in this regard in view of the decisions rendered by this Court beginning from Rajasthan SEB v. Mohan Lal, Ajay Hasia and other decisions including a seven- Judge Bench decision of this Court in Pradeep Kumar Biswas, is to say the least, phenomenal.
22. We may also notice that P.K. Ramachandra Iyer v. Union of India wherein Indian Council for Agricultural Research (ICAR) was held to be "State" within the meaning of Article 12 of the Constitution of India, was distinguished in Chander Mohan Khanna. However, Chander Mohan Khanna was overruled in Pradeep Kumar Biswas to the extent it followed the decision in Sabhajit Tewary v. Union of India.
23. In Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Assn. Mysore Paper Mills Ltd. was held to be "State" within the meaning of Article 12 of the Constitution of India as it was substantially financed and controlled by the Government, managed by the Board of Directors nominated and removable at the instance of the Government and carrying on functions of public interest under its control.
24. In Pradeep Kumar Biswas the following tests have been laid down by a seven-Judge Bench of this Court:
(i) Formation of the body
(ii) Objects and functions
(iii) Management and control
(iv) Financial aid, etc.
25. The dicta of Mathew, J. in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi was quoted with approval therein is in the following terms: (Pradeep Kumar Biswas case, SCC p. 126, para 17) "17. For identifying such an agency or instrumentality he propounded four indicia:
(1) 'A finding of the State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action.' (Sukhdev Singh case, SCC p. 454, para 96) (2) 'Another factor which might be considered is whether the operation is an important public function.' (SCC p. 454, para 97) (3) 'The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion.' (SCC p. 454, para 97) (4) 'The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the Government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business?' (SCC p. 458, para 111)"
26. This Court referred to Ajay Hasia wherein the tests gathered from the decision of this Court in Ramana Dayaram Shetty were stated in the following terms: (Pradeep Kumar Biswas case, SCC pp. 130-31, para 27) "(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (Ramana Dayaram Shetty case, SCC p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15) (3) It may also be a relevant factor ... whether the corporation enjoys monopoly status which is State-conferred or State protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15) (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16) (6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government.
(SCC p. 510, para 18)"
27. It was held in Pradeep Kumar Biswas: (SCC p. 134, para 40) "40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be--whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."
28. In Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kalyan Nigam this Court held the respondent therein to be "State" within the meaning of Article 12 of the Constitution of India, applying the tests of administrative control, financial control and functional control.
29. The question as to whether the Board of Control for Cricket in India (BCCI) which is a private body but had a control over the sport of cricket in India is "State" within the meaning of Article 12 of the Constitution of India came up for consideration before a Constitution Bench of this Court in Zee Telefilms Ltd. v. Union of India wherein the majority felt bound by the dicta laid down in Pradeep Kumar Biswas to opine that it was not "State" within the meaning of Article 12 of the Constitution of India. However, the minority noticed:
"70. Broadly, there are three different concepts which exist for determining the questions which fall within the expression 'other authorities':
(i) The corporations and the societies created by the State for carrying on its trading activities in terms of Article 298 of the Constitution wherefor the capital, infrastructure, initial investment and financial aid, etc. are provided by the State and it also exercises regulation and control thereover.
(ii) Bodies created for research and other developmental works which are otherwise governmental functions but may or may not be a part of the sovereign function.
(iii) A private body is allowed to discharge public duty or positive obligation of public nature and furthermore is allowed to perform regulatory and controlling functions and activities which were otherwise the job of the Government. (Zee Telefilms Ltd. case, SCC pp. 694-95, para 70)
71. There cannot be same standard or yardstick for judging different bodies for the purpose of ascertaining as to whether any of them fulfils the requirements of law therefor or not. (SCC p. 695, para 71)
80. The concept that all public sector undertakings incorporated under the Companies Act or the Societies Registration Act or any other Act for answering the description of State must be financed by the Central Government and be under its deep and pervasive control has in the past three decades undergone a sea change. The thrust now is not upon the composition of the body but the duties and functions performed by it. The primary question which is required to be posed is whether the body in question exercises public function. (SCC p. 697, para 80)
110. Tests evolved by the courts have, thus, been expanded from time to time and applied having regard to the factual matrix obtaining in each case. Development in this branch of law as in others has always found differences. Development of law had never been an easy task and probably would never be. (SCC p. 703, para 110)"
The majority despite holding that BCCI is not "State" within the meaning of Article 12 of the Constitution of India opined that a writ petition under Article 226 of the Constitution of India would be maintainable against it.
30. In State of U.P. v. Neeraj Awasthi the U.P. State Agricultural Produce Market Board has been held to be "State", holding: (SCC p. 681, para 33) "33. The Board is 'State' within the meaning of Article 12 of the Constitution. It was constituted in terms of the provisions of the said Act. As the powers and functions of the Board as also the State in terms of the provisions of the statute having been delineated, they must act strictly in terms thereof. It is a statutory authority. Its powers, duties and functions are governed by the statute. It is responsible for constitution of the market committees for the purpose of overseeing that agriculturists while selling their agricultural produce receive the just price therefor. It not only regulates sale and purchase of the agricultural produce but also controls the markets where such agricultural produces are bought and sold. The Board is entitled to levy market fee and recover the same from the buyers and sellers through market committees. Indisputably, the market committees and the Board have power to appoint officers and servants. Although the power of the Board in this respect is not circumscribed, that of the market committees is. The market committees can appoint only such number of secretaries and other officers as may be necessary for efficient discharge of its functions. Terms and conditions of such services are to be provided by it. Section 19 of the Act, however, imposes further restriction on the power of the market committee by limiting the annual expenditure made in this regard not exceeding 10% of the total annual receipt of the committee."
31. In S.S. Rana v. Registrar, Coop. Societies, Pradeep Kumar Biswas has been followed.
32. We have noticed the history of the Federation. It was a part of the department of the Government. It not only carries on commercial activities, it works for achieving the better economic development of a section of the people. It seeks to achieve the principles laid down in Article 47 of the Constitution of India viz. nutritional value and health. It undertakes training and research work. Guidelines issued by it are binding on the societies. It monitors the functioning of the societies under it. It is an apex body. We, therefore, are of the opinion that the appellant herein would come within the purview of the definition of "State" as contained in Article 12 of the Constitution of India.
33. The learned Single Judge called for the records. It was found that the Regulations were amended in conformity with the government circulars and, thus, the said amendment was valid. It was noticed that at least in cases of 16 employees, the average grading being "Good", their services could not have been dispensed with.
34. The Division Bench of the High Court, furthermore, noticed that although in many cases, the ACRs were not available but an attempt had been made to grant "Average" on the basis of the year. It was furthermore found that although the Scrutiny Committee was required to lay emphasis on the grading of last five years, there was no justification why the last two years' grading had not been taken into consideration. It was furthermore held that the process of weeding out does not satisfy the test of rationalisation, stating:
"(a) There has been no rationalisation of marking system when conversion has taken place from grading to award of marks by the Screening Committee.
(b) The principle of average that has been applied by the Screening Committee is not an acceptable one as the best average principle should have ordinarily been applied in the absence of non-availability of the ACR, for the ACRs are maintained and kept by the employer.
(c) There was no justification to fix a cut-off date when the Screening Committee met at a later stage.
(d) Though the circular postulates that last five years' ACRs have to be taken into consideration for the purpose of finding out whether there has been declining of progress in the performance of the employee the last two years' ACRs were not considered.
(e) In certain cases benefit of promotion conferred by the said facet has not been taken into consideration at all which reflects non-application of mind."
It was, however, opined that back wages to the employees should be confined to 20%."
In case of Akalakunnam Village Service Cooperative Bank Limited & Anr. -Vs- Binu N. & Ors. reported in (2014) 9 SCC 294 the Writ Petition was held to be maintainable if the cooperative society discharges the functions akin to a public function and violation of statutory rules of circulars are the subject matter of challenge before the High Court.
Apart from the judgment indicated above the Division Bench of this Court in case of Bhawani Adhikari -Vs- West Bengal State Cooperative Bank Limited & Ors. held that even if it is technically found that the Article 226 of the Constitution is not maintainable but if a case of a breach of statutory rules of provisions is alleged against a cooperative constituted under the Act, the Writ Petition is maintainable.
In the instant case, there is no indication in the Writ Petition about the creation of a Co-operative Bank except that a Co-operative Service Commission was constituted by the State under Section 38 of the West Bengal Cooperative Societies Act, 1983. It is also an admitted fact that the petitioners were selected by the Cooperative Service Commission, West Bengal and on the basis of a recommendation the appointment letter was issued by the Board. Section 32(1)(b) of the Act postulates that there shall be one nominated member in the Board of the State Government. Section 40 of the Act empowers the State Government to issue directives after giving opportunity of hearing to the Co- operative Society to modify its policy in tune with such directives or any action may be taken by the State Government which it considers necessary or expedient in the interest of Co-operative Society. In absence of any clear pleading in this regard, this Court can safely proceed on the basis that once the challenge is founded on the violation of the Act or the Rules, the Writ Petition is maintainable as held in S.S. Rana (Supra)--
"18. We may notice in some decisions, some High Courts have held wherein that a writ petition would be maintainable against a society if it is demonstrated that any mandatory provision of the Act or the Rules framed thereunder, have been violated by it."
The challenge is based upon the jurisdiction and authority of the General Manager issuing show cause notices, which according to the petitioner is contrary to the Act as well as the Rules of the Co-operative Society. This Court, therefore, does not find that the Writ Petition is not maintainable as alleged by the petitioner. If there is any breach of a statutory duty which laid the foundation of the Writ Petition, the Writ Petition would be maintainable / entertainable.
Reverting to the other plea touching the show cause notices, it would be apposite to quote certain provisions of the Act and the Rules which are as under:--
"43. Appointment of persons in the service of a Co-operative society.-
(1) The Board of a Co-operative society may, from time to time, create posts of different categories of employees to assist the Co-operative society in the performance of its duties and discharge of its function and such creation of posts shall only be made with prior approval by the general body.
(2) The Board of a Co-operative society shall appoint, subject to the provisions of this Act, the Rules and the by-laws, such officer and other employees in respect of which the posts are created under sub-section (1)."
"Rule 106
21. Formulation of other conditions, if any Besides the conditions of service as mentioned under these rules, the board may formulate other conditions of service as may be required from time to time."
It is sought to be contended by the Petitioner that the Board of the Co- operative Society is an appointing authority and in view of paragraph 15 of Rule 106 of the West Bengal Cooperative Societies Rules, 2011, it will be a disciplinary authority. What is sought to be contended that the management and the affairs of the society is vested upon the Board of Directors who are also an appointing and disciplinary authorities and therefore the show cause notices issued by the General Manager is invalid, illegal and without jurisdiction.
My contention is drawn to Clause 20 of the Chapter X of Service Rules framed by the respondent Cooperative Society that the Board of Directors / Chairman / General Manager of the Bank shall decide which officer shall be empower to hold and take disciplinary action in a case of each officer or establishment provided he should be an officer higher in the status than the officer authorized to take disciplinary action. Furthermore, Rule 106 (21) gives unbridled power to the Board to formulate the conditions of service or other conditions as may be required from time to time. It is, therefore, manifest that the General Manager is not denuded of an authority to hold and take a disciplinary action against each officer and it would not be correct to say that he lacks complete authority or jurisdiction to issue a show cause notice. The show cause notice can be impinched under Article 226 of the Constitution if it is found to be wholly without jurisdiction or for some other reason it appears to be wholly illegal.
The second limb of challenge to show cause and / or charge sheet is that the charges framed therein is vague. It appears from the notice dated 07.06.2016 issued by the General Manager that the disciplinary proceeding is set in motion on 3 articles of charges namely willful avoidance and negligence of duties, breach of trust and connivance with the Appraiser and the borrowers. The imputation of charges on each article of charges clearly depict the facts which led to such charges and cannot be said to be lacking in material particulars. According to the petitioner, none of the articles of charges are covered under paragraph 14 of Rule 106 of the Rules, 2011 and therefore the charge sheet cannot withstand in law. First charge relates to the willful avoidance and negligence of duties which this Court finds place in paragraph 14(ii) and (vi) of Rule 106 of the Rules, 2011. Second charge, though couched in a different language but relates to the affairs of the society and loss to the property because of some vested interest or damage been caused to the property of the society. The third charge imbibed within itself those elements and therefore it cannot be said that all the articles of charges are beyond the periphery of paragraph 14 thereof. The judgment of the Supreme Curt in case of Union of India & Ors. -Vs- J. Ahmed reported in AIR 1979 SC 1022, relied upon by the petitioner does not appear to have any manner of application in the context of the present case. In the said case, the Court found that there was no misconduct alleged in the articles of charges and even after the retirement, the extension was granted beyond the prescribed period and ultimately it was held that since he was no longer in service at the time of inflicting the punishment, the said order is not sustainable.
In case of Sawai Singh -Vs- State of Rajasthan reported in AIR 1986 SC 995 the challenge was made by way of a Writ Petition before the Supreme Court to an order removing the petitioner therein from service. It was not a case whether at the nascent stage of issuing the show cause notices or submissions of articles of charges the challenge is thrown on the vagueness. Factually, it was found that the first charge relating to manipulation pertaining to withdrawal of the candidature by Jiwan Dass lacks complete statements and particulars and the second charge of committing forgery was based on the evidence of the hand writing expert who was not available for cross examination as by that time he was dead. In the backdrop of the above, it is held:
"18. Having regard to the consequences of the offences with which the delinquent officer was charged and having regard to the nature of charge and the evidence of handwriting expert and the absence of opportunity for cross-examination and the conflicting nature of evidence of Chaturbhuj and nature of evidence given by Jiwan Dass, we are of the opinion that the report of the enquiry officer finding the appellant guilty should not have been sustained and the government should not have acted upon it. The High Court in our opinion, with great respect, was in error in not bearing in mind these aspects which have been indicated hereinbefore."
The judgment of the Supreme Court in case of Transport Commissioner, Madras-5 -Vs- A. Radha Krishna Moorthy reported in (1995) 1 SCC 332 throws some light on the point of vagueness of charges. It is manifest from the said decision that on a mere reading of the charges if it appears that they are not specific and clear but ambiguous in nature it will render impossible to the delinquent to give a reply. In the said report apart from the articles of charges, there was no supporting particulars or the materials supplied to the delinquent and it was held that such vague charge sheet being general one would invite a futile exercise resulting in dismissal of the disciplinary proceeding. it is profitable to quote the excerpts from the said judgment which runs thus:-
"9. Insofar as the vagueness of the charges is concerned we find that it deserves acceptance. It is asserted by Shri Vaidyanathan, learned counsel for the respondent that except the memo of charges dated 4-6-1989, no other particulars of charges or supporting particulars were supplied. This assertion could not be denied by the learned counsel for the appellant. A reading of charges would show that they are not specific and clear. They do not point out clearly the precise charge against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature to the effect that the respondent along with eight other officials indulged in misappropriation by falsification of accounts. What part did the respondent play, which account did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularised. The charge is a general one. It is significant to notice that respondent has been objecting to the charges on the ground of vagueness from the earliest stage and yet he was not furnished with the particulars. It is brought to our notice that respondent's name was not included in the schedule appended to GOMs 928 dated 25-4-1988 mentioning the names of officials responsible for falsification of accounts and misappropriation and that he is also not made an accused in the criminal proceedings initiated in that behalf."
In case Anil Gilurker -Vs- Bilaspur Raipur Kshetriya Gramin Bank and Anr. reported in (2011) 14 SCC 379, the Branch Manager of the bank sanctioned and distributed loans to large number of brick manufacturing units under the Integrated Gram Development Programme. The delinquent was placed under suspension and was issued a charge sheet for misconduct punishable under the relevant regulations. Delinquent was asked to submit his written defence, which was submitted subsequently denying all the allegations made in the charge sheet. An Enquiry Officer inquired into the charges and found that the witness produced by the bank have not stated what was actually advanced was less than the loan amount and the charge of financial corruption has not been proved. The disciplinary authority agreed with the finding of the Enquiry Officer and held the charge of financial corruption to have been proved and issued a show cause against the delinquent why he should not be punished. Even the reply to the said show cause was not found satisfactory and ultimately the disciplinary authority removed the delinquent from service. The said order was challenged in a Writ Petition on various grounds including the vagueness in allegations. The Apex Court noticed the report of the Enquiry Officer where there was no cogent evidence produced against the delinquent and there was no documents produced relating to the transactions forming an opinion a financial corruption. In the backdrop of the same, it was held that in the above backdrop it is difficult to conceive that a fair inquiry could be held and the details of the incident and charges should be made known to the delinquent in this words--
"14. This position of law has been reiterated in the recent case of Union of India v. Gyan Chand Chattar and in para 35 of the judgment as reported in SCC, this Court has observed that the law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice and the charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges."
Aforesaid decisions in my opinion cannot come in aid at this stage of the proceeding. The petitioner have filed the instant Writ Petition at this stage of show cause notice or the charge sheet alleging various grounds including the ground of vagueness. The Enquiry Officer is appointed who shall held an inquiry and may ultimately found either the charges being not proved or the charges are not sufficient enough to hold the petitioner guilty. The Supreme Court in case of Union of India & Anr. -Vs- Kunisetty Satyanarayana reported in (2006) 12 SCC 28 held that no Writ Petition is maintainable against a charge sheet or show cause notice except in very rare and exceptional cases when the same is found to be wholly without jurisdiction or for some other reasons it is wholly illegal in these words:--
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, Special Director v. Mohd. Ghulam Ghouse, Ulagappa v. Divisional Commr., Mysore, State of U.P. v. Brahm Datt Sharma, etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show- cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet."
In case of Ministry of Defence -Vs- Prabhash Chandra Mirdha reported in (2012) 11 SCC 565 it is held that ordinarily the Court should not permit quashing of the charge sheet in routine manner as it does not give rise to any cause of action. At such stage there is no adverse order passed against the delinquent affecting his right. The law is summarized by the Supreme Court in paragraph 12, which reads thus:-
"12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
It, thus, transpires from the enunciation of law laid down in the above noted reports that the Court should not ordinarily interfere at the stage of show cause or charge sheet except in rare of rarest cases. Mere issuance of the charge sheet or the show cause cannot be considered to have affected the rights of the party to have been infringed. Furthermore, the authorities have not applied their minds as yet and it may be that after considering the reply and the other materials placed before it the proceeding may be dropped.
However, this Court finds that the petitioner in WP 12218(W) of 2016 has asserted that the documents disclosed in Annexure 'C' to the charge sheet had not been given by the authorities. There appears to be a divergent stand on the above aspect. The letter dated 22.06.2016 issued by the petitioner containing the statement that the copy of the Annexure 'C' is being forwarded to the petitioner contains the statement of the petitioner at the footnote that it does not contain any documents. It is a settled law that the documents relied upon by a disciplinary authority must be given to the delinquent employee and any departure therefrom offends the principle of natural justice. There appears to be a difference of stand on the above aspect and this Court, therefore, feels that once the law recognizes that the delinquent should be provided with all documents to be relied by the authority such document should be handed over.
This Court, therefore, directs the Bank Authorities to supply the copy of the documents indicated in Annexure 'C' to the charge sheet to the petitioner of the said Writ Petition within fortnight from date.
The petitioner is permitted to file reply within 15 days from the date of receipt of the copy of those documents to the authority indicated in the show cause / charge sheet.
So far as the petitioner in WP 12221(W) of 2016 is concerned, there is no dispute that the documents were not handed over. The petitioner himself has admitted to have received those documents and sought for extension of time to give reply.
For the ends of justice this Court extends the time to file reply to the show cause / charge sheet by 15 days from the date of this order.
In both the Writ Petitions the authorities are directed to proceed with the proceeding observing the principle of natural justice and the relevant rules applicable therefore and it is needless to mention that the proceeding should reach to its logical conclusion within reasonable period of time.
With these observations, both the Writ Petitions are disposed of. However, there shall be no order as to costs.
(Harish Tandon, J.)