Calcutta High Court
Sri Asim Chatterjee vs The State Of West Bengal And Ors. on 24 June, 2004
Equivalent citations: (2004)3CALLT247(HC)
Author: P.K. Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT P.K. Chattopadhyay, J.
1. The petitioner herein has challenged the order of termination dated 8th May, 2000 issued by the Chief Executive Officer of the Burdwan Central Co-operative Bank Limited in pursuance to the resolution of the Board of Directors of the said bank.
2. It has been alleged on behalf of the petitioner that the respondent authorities herein have terminated the service of the petitioner illegally, wrongfully and in violation of the prescribed service rules as applicable to the petitioner herein. The learned counsel of the petitioner submits that the acts of misconducts were allegedly committed by the petitioner while serving as an employee of a different organisation before joining the services of the respondent Burdwan Central Co-operative Bank Limited.
3. It has also been alleged on behalf of the petitioner that the respondent Burdwan Central Co-operative Bank Limited being the subsequent employer had no lawful jurisdiction and/or authority to initiate the disciplinary proceedings against the petitioner in connection with the allegations of misconduct alleged to have been committed by the petitioner while serving under the previous employer. It has been specifically submitted on behalf of the petitioner that the authorities of the said bank never made any allegation against the petitioner in relation to the discharge of his duties as an employee of the said respondent bank.
4. Undisputedly, the petitioner served as Manager, Raipur Samabay Krishi Unnyan Samity Limited before joining the services of the said Burdwan Central Co-operative Bank Limited.
5. It has also been contended on behalf of the petitioner that his previous employer gave him a clean chit at the time of releasing him from service and the previous employer never initiated any disciplinary proceeding against the petitioner. As a matter of fact, the petitioner while joining the service of the said bank submitted 'No Demand' Certificate from his previous employer which was signed by the Secretary of the said Raipur SKUS Limited. The said certificate issued on behalf of the previous employer, namely, the Secretary of the Raipur SKUS Limited is set out hereunder :
"Certified that the above informations are correct and the employee has not defaulted/misappropriated any sum of money/ stock of society. The performance of the employee is quite satisfactory."
6. Before joining the said bank, previous employer of the petitioner furnished detailed information about the petitioner before the competent authorities of the said Burdwan Central Co-operative Bank Limited alongwith the audit reports for the year 1994-95 and 1995-96. The concerned Area Supervisor also verified the information furnished by the previous employer in respect of the petitioner from the records of the society and certified the same to be correct.
7. The learned Advocate of the petitioner submits that no allegation was made on behalf of his previous employer while releasing him from the service. Mr. Sengupta, learned counsel of the petitioner submits that Raipur SKUS Limited, the previous employer of the petitioner is governed by the West Bengal Co-operative Societies Act and Rules framed thereunder. It has been urged on behalf of the petitioner that the said Raipur SKUS Limited is an independent and autonomous juristic person and not under the administrative control of the respondent Burdwan Central Co-operative Bank Limited.
8. Mr. Sengupta learned counsel of the petitioner submits that the previous employer of the petitioner, namely, Raipur SKUS Limited, is run by the independent and autonomous Managing Committee and not controlled in any way by the authorities of the respondent Bank. Mr. Sengupta further submits that Rule 48 of the West Bengal Co-operative Societies Rules lays down the power of the Board of the society which includes full control over the administration and business of the society, allocation of duties and responsibilities of the staff of the society, appointment, discharge, dismissal or removal of the employees as per procedure prescribed therein read with By laws 41 and 42(2) of the said society.
9. Referring to the West Bengal Co-operative Rules, Mr. Sengupta submits that Rule 108(4) of the said Rules defines the misconduct and disciplinary actions in respect of an employee of the Co-operative Society including the prescribed punishments for such misconduct of the concerned employee. It has been specifically urged on behalf of the petitioner that after joining the services of the Burdwan Central Co-operative Bank Limited, petitioner is governed by the Service Rules of the said bank and the respondent bank may initiate disciplinary proceeding against the petitioner only in compliance with the said service rules.
10. Mr. Sengupta referred to Rule 30 of the said Services Rules of the respondent Bank wherein 'Gross Misconduct' on the part of an employee of the bank has been defined. Mr. Sengupta submits that the 'Gross Misconduct' of an employee as defined in Rule 30 of the Service Rules does not extend to offences allegedly committed by the concerned employee elsewhere prior to joining the services of the bank.
11. The learned counsel of the petitioner strongly urged before this Court that the authorities of the Burdwan Central Co-operative Bank Limited have no authority and/or jurisdiction and/or competence to interfere with the authorities and/or decision of the Managing Committee of the Raipur SKUS Limited. According to the learned counsel of the petitioner, alleged offences of the petitioner while working as an employee in a different Co-operative Society, namely, Raipur SKUS Limited do not come within the ambit of the Service Rules of the respondent Burdwan Central Co-operative Bank Limited and no allegation has been made against the petitioner constituting any misconduct under the Service Rules of the bank as the said allegations are not in connection with the and/or in relation to the business and affairs of the respondent bank.
12. The learned counsel of the petitioner submits that Rule 108 of the West Bengal Co-operative Societies Rules specifically prescribes that services of the employees of the Co-operative Societies, except where governed by specific contract in the nature of service Rule, shall be governed by Rule 108 itself. The employees working under the Co-operative Societies governed by the service Rule belong to a class distinct and different from those working in Co-operative Societies governed by the West Bengal Co-operative Societies Rules and the By-laws of the society concerned. Rule 108 itself rules out simultaneous application of both the West Bengal Co-operative Societies Rules and the Service Rules of the bank.
13. Mr. Sengupta, learned counsel of the petitioner also submits that the disciplinary action in the form of dismissal of the petitioner by the bank from its service for the alleged past offences of the petitioner while serving as Manager of Raipur SKUS Limited is unlawful interference with the powers and duties of the Managing Committee of the Raipur SKUS Limited as statutorily protected in Rules 48 and 108 of the West Bengal Co-operative Societies Rules.
14. It has also been submitted on behalf of the petitioner that the report of the Enquiry Officer and the second show cause notice were not served upon the petitioner before issuance of the order of termination and as such the respondent authorities acted in violation of the mandatory requirements of the Service Rules. The learned counsel of the petitioner also contends that a copy of the alleged confessional statement, which was heavily relied on by the disciplinary authority, was not supplied to the petitioner nr even annexed to the affidavit.
15. Mr. Tarun Roy, learned counsel of the respondent Bank, however, submits that the petitioner herein is governed by the West Bengal Co-operative Societies Rules, 1987 and also by the Service Rules of the bank. Mr. Roy further submits that under Rule 108 of the West Bengal Co-operative Societies Rules, 1987, the conditions of service of the employees of Co-operative Societies have been laid down. Unless any of the conditions contained therein is in conflict with any specific contract enforceable by law that shall be applicable in respect of the petitioner. The Clause No. 14{a) of the Conditions of Service provides that various acts mentioned thereunder shall constitute misconduct for an employee. Amongst those clause 14(a}(iii) provides as follows:
"theft, fraud, misappropriation or dishonesty in connection with employer's business or property or otherwise;"
16. Mr. Roy further submits that the words 'or otherwise' used in Clause 14(a)(iii) of Rule 108 make the said Clause of misconduct of wide amplitude and of general application. According to Mr. Roy, if an employee of a Co-operative Society is found to be involved in any case of fraud, misappropriation, etc. in connection with the affairs of any other organisation beyond the scope of employment of the employee concerned even then the same would constitute a misconduct for initiating a disciplinary proceeding under the Statutory Rules in a Co-operative Society. Mr. Roy further submits that it is immaterial whether such act of misdemeanor was committed at a point of time previous to his employment under the Co-operative Society or during such employment.
17. The learned counsel of the respondent bank specifically urged before this Court that no restrictive interpretation should be used to ascertain the real meaning of the words 'or otherwise' as that would defeat the very purpose of providing for those words. Mr. Roy referred to and relied upon a decision of the Supreme Court in this regard in the case of S. Govinda Menaon v. Union of India .
18. Mr. Roy further submits that though the previous employer of the petitioner, namely, Raipur SKUS Limited is a different juristic entity but the respondent bank had the jurisdiction to initiate disciplinary proceeding against the petitioner for his previous acts of misconducts under the previous employer. The learned counsel of the respondent bank, however, admitted that the petitioner joined the services of the bank after obtaining a clean chit from his erstwhile employer and it has also been admitted by the learned counsel of the respondent bank that the past acts of alleged misconducts of the petitioner were not revealed when the petitioner joined the services of the respondent bank.
19. From the records it appear that the Assistant Registrar of Co-operative Societies made certain allegations against the petitioner in connection with the business and affairs of his previous employer, namely, Raipur SKUS Limited which is affiliated to the respondent Burdwan Central Co-operative Bank Limited. It also appears from the records that pursuant to the instruction of the Chairman of the respondent Burdwan Central Co-operative Bank Limited, Deputy Manager of the said bank issued a notice to the Secretary, Raipur SKUS Limited informing him that an enquiry will be held in respect of the alleged irregularities and misappropriation of funds as reported by the Assistant Registrar of Co-operative Societies, Burdwan -I, and the said Deputy Manager also asked the petitioner herein to remain present in the said enquiry.
20. Thereafter, on 2nd February 2000, the Chief Executive Officer, Burdwan Central Co-operative Bank Limited issued a charge-sheet against the petitioner for being party to the misdeeds of alleged defalcation of funds as the Manager of the said Raipur SKUS Limited.
21. Surprisingly, the authorities of the Raipur SKUS Limited did not issue any charge-sheet against the petitioner and the Chief Executive Officer of Burdwan Central Co-operative Bank Limited issued the said charge-sheet for the misdeeds allegedly committed by the petitioner in respect of the affairs of his erstwhile employer.
22. The learned counsel of the petitioner also alleged that the Enquiry Officer was appointed in the instant case in violation of Rule 36 of the Service Rules governing the conditions of services in respect of the employees of the Burdwan Central Co-operative Bank Limited, It has been specifically submitted on behalf of the petitioner that the enquiry proceeding was conducted against the petitioner in violation of the principles of natural justice and even reasonable opportunities were not granted to the petitioner for defending himself in the said enquiry proceeding. It has further been alleged on behalf of the petitioner that even at the end of the enquiry proceeding, no enquiry report was supplied to the petitioner for the purpose of taking necessary steps in compliance with the prescribed rules and procedure.
23. The learned counsel of the respondent authorities, however, submits that although the enquiry report was not supplied earlier to the petitioner but a copy of the same has been annexed subsequently with the Affidavit-in-opposition filed in connection with this writ petition for the information of the petitioner.
24. One more serious allegation has been made by the petitioner that the second show cause notice was also not served upon the petitioner in compliance with the mandatory requirements of Rule 48(f) of the West Bengal Co-operative Societies Rules before dismissing the petitioner from the services of the respondent bank. The learned counsel of the petitioner submits that in compliance with the provisions of Rule 48(f), an opportunity of making representation should have been granted to the petitioner before issuing the order of dismissal. The learned counsel of the petitioner further submits that the service of second show cause notice upon the petitioner is a mandatory requirement under Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987 and the respondent authorities issued the impugned order dated 8th May, 2000 dismissing the petitioner from the services of the respondent bank without complying with the mandatory requirement of Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987.
25. The learned counsel of the respondent bank, however, fairly admitted that the aforesaid mandatory requirement of the provisions of the Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987 has not been followed in the case of the petitioner and on this ground alone the order of dismissal is liable to be quashed.
26. However, Mr. Roy, learned counsel of the respondent bank submits that if the order of dismissal is set aside for violation of Rule 49(f) of the West Bengal Co-operative Societies Rules, 1987 and for non-furnishing of the Enquiry Officer's report to the petitioner for enabling him to effectively reply to the punishment proposed, the disciplinary authority should be given liberty to reinstate the petitioner and put him thereafter under suspension again with further liberty to continue with the disciplinary proceedings from the stage of the second show cause notice after making payment of subsistence allowance till the conclusion of the said proceeding. Mr. Roy further submits that if the authorities ultimately decide after considering the petitioner's reply to the second show cause notice and his explanation to his written confession that an order of dismissal is an appropriate punishment, the petitioner may not be entitled to any back-wages from the earlier date of his dismissal till the date of his reinstatement.
27. Mr. Roy also submits that if the disciplinary authority considers the punishment of dismissal is too harsh and reinstates the petitioner with the lesser punishment, the disciplinary authority itself should have the liberty to decide how much should be paid to the petitioner legitimately as back-wages for the period he was thrown out of employment by the impugned order of dismissal. Mr. Roy referred to and relied upon a decision of the Supreme Court in this regard (Managing Director, ECIL, Hyderabad, etc. v. B. Karunakar, etc., etc.) Paragraph 7(v).
28. Considering the rival contentions of the respective parties and scrutinising the available records I find that the authorities of the respondent bank proceeded against the petitioner in a most high-handed manner. The authorities of the respondent bank in connivance with the Assistant Registrar of Co-operative Societies, Burdwan - I, proceeded against the petitioner in a clandestine manner and did not even care to remember that the erstwhile employer of the petitioner not only issued a clean chit at the time of releasing the petitioner from the organisation but also the said erstwhile employer is not in any way under the administrative control of the respondent bank.
29. Shockingly, the Chairman and the Deputy Manager of the respondent bank decided to proceed against the petitioner on the charge of alleged misdeeds of defalcation of funds of his previous employer although the said employer did not issue any charge-sheet against the petitioner. The petitioner discontinued his relationship with his previous employer in the year 1997 and joined the services of the respondent Burdwan Central Co-operative Bank Limited after obtaining a release order from his erstwhile employer.
30. The concerned Assistant Registrar of Co-operative Societies for the reasons best known to him forwarded a report to the authorities of the Burdwan Central Co-operative Bank Limited alleging commission of misdeeds by the petitioner while functioning as a Manager of the erstwhile society before joining the respondent bank.
31. The authorities of the Burdwan Central Co-operative Bank Limited has completely forgotten that the Raipur SKUS Limited is an independent autonomous society and the authorities of the Burdwan Central Co-operative Bank Limited have no authority and/or jurisdiction and/or competence to initiate any disciplinary proceeding in relation to the functioning of any employee of the said society.
32. It is not a case that the report of the Assistant Registrar of Co-operative Societies concerned was forwarded to the Raipur SKUS Limited for the purpose of taking appropriate steps in the matter and as a matter of fact the authorities of the Raipur SKUS Limited never decided to proceed against the petitioner.
33. The petitioner after joining the services of the respondent bank is certainly governed by the Service Rules of the said bank and the authorities of the respondent bank while initiating disciplinary proceedings against the petitioner will not only comply with the provisions of the aforesaid Service Rules of the respondent bank but will also comply with the mandatory requirements of the West Bengal Co-operative Societies Rules, 1987.
34. In the present case, the respondent authorities never alleged that the petitioner has committed any misconduct in relation to the business and affairs of the respondent bank and admittedly, the entire allegations against the petitioner are centering around his previous employer in respect of another independent society which never decided to proceed against the petitioner. The Assistant Registrar of Co-operative Societies most unfortunately made certain allegations against the petitioner regarding financial irregularities although the detailed particulars in respect of the previous employment of the petitioner on the basis of the statutory audit reports were submitted by the petitioner in the prescribed form and manner which were not only certified by the Secretary of the previous employer but the same were also verified by the concerned senior Supervisor.
35. As I have already observed that the respondent bank had no authority to initiate disciplinary proceedings against the petitioner on the basis of the report of the concerned Assistant Registrar of Co-operative Societies after a couple of years for the alleged misdeeds committed by the said petitioner while functioning in the employment of the previous employer but the said disciplinary proceedings were conducted against the petitioner in violation of the settle principles of natural justice and procedural justice. The respondent authorities did not care to provide reasonable opportunities to the petitioner to defend himself before the Enquiry Officer while conducting the enquiry proceedings apart from the fact that no copy of enquiry report was also supplied to the petitioner after conclusion of the enquiry proceedings.
36. The authorities of the respondent bank in hot-haste dismissed the petitioner from service even without providing a reasonable opportunity of making representation on the proposed penalty by not serving a second show cause notice in compliance with the mandatory requirements of Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987. Although the learned counsel of the respondent bank admits that the authorities of the respondent bank did not comply with the mandatory requirements of the provisions of Rule 48(1) of the West Bengal Co-operative Societies Rules, 1987 as a result whereof the order of dismissal issued against the petitioner is liable to be quashed but Mr. Roy sought to defend the actions of the authorities of the respondent bank regarding initiation of the disciplinary proceedings against the petitioner for his alleged misdeeds while functioning as an employee under the previous employer.
37. Mr. Roy referred to the decision of the Supreme Court in the case of S. Govinda Menaon v. Union of India (supra) in support of his aforesaid contention and submits that even if the petitioner was not subject to the administrative control of the respondent bank during the period in question at the relevant time but his act or omission could very much from the subject matter of disciplinary proceedings. I am unable to accept the aforesaid contention of the learned counsel of the respondent bank.
38. In my view, the words 'or otherwise' mentioned in Clause 14(a)(iii) under Rule 108 of the West Bertgal Co-operative Societies Rules cannot and does not mean any misconduct in relation to the affairs of the business or property of third party other than the employer. The word 'otherwise' mentioned in Clause 14(a)(iii) would obviously mean the affairs of the employer with whom the employee is working.
39. The ratio of the judgment in the case S. Govinda Menon v. Union of India, cited by the learned counsel of the respondent bank has no manner of application in this case. The IAS Officers whether in Central or in the State Cadre continue to remain under the lien and administrative control of their appointing authority even while on deputation inside or outside India, on assignment or on deputation. But the petitioner, an erstwhile employee of the Raipur SKUS Limited upto 15.09.1997, became an employee of the bank from 16.09.1997. The authorities of the Society and the Bank are two distinct and separate identity guided by different provisions of the Act and the Rules. Gobinda Menon, on the other hand, was an IAS Officer of Kerala Cadre as Member, Board of Revenue, Kerala State and was holding the post of Commissioner of Hindu Religious and Charitable Endowments in addition to his charge as Member, Board of Revenue, Kerala when he faced the disciplinary proceeding as referred.
40. In view of autonomous and independent status of the Raipur SKUS Limited under the Act and the Rules and specially in terms of Rule 48 of the Rules the Board of the Raipur SKUS Limited is independent and not under the administrative control of the Burdwan Central Co-operative Bank Limited. Accordingly, the notice dated 20.12.1999 of the Deputy Manager of the Bank, findings dated 03.01.2000 of the Deputy Manager, the Show Cause Notices dated 02.02.2000 and 08.04.2000 of the Chief Executive Officer, Notice dated 20.04.2000 of the Deputy Manager being annexure 'B' 'C' and 'G' to the writ petition are all unlawful, without jurisdiction and nonest in the eye of law.
41. For the aforementioned reasons, I am constrained to hold that the authorities of the respondent bank have flagrantly violated the statutoiy provisions of the West Bengal Co-operative Societies Act and Rules framed thereunder apart from the Service Rules of the said bank while initiating disciplinary proceedings against the petitioner. As I have already held hereinbefore, the authorities of the respondent bank had no right and/or jurisdiction to initiate disciplinary proceedings against the petitioner for the misdeeds alleged to have been committed while functioning under the previous employer and it is for the previous employer to proceed against the petitioner in accordance with law, if necessary. Furthermore, the respondent authorities have repeatedly violated the principles of natural justice and procedural justice while conducting the disciplinary proceedings in respect of the petitioner herein as have already been indicated hereinbefore.
42. However, this Court is of the view that the respondent bank had no right to initiate any disciplinary proceedings against the petitioner for committing the alleged misdeeds while functioning under the erstwhile employer over which the respondent bank had no control in any manner whatsoever as the said erstwhile employer is admittedly, a distinct and separate legal identity and authorised to take disciplinary action against its employees, if necessary.
43. The authorities of the respondent bank cannot usurp the power of the said society under any circumstances for initiating and conducting disciplinary proceedings against the petitioner for committing the alleged misdeeds while functioning as the Manager of the said society.
44. For the aforementioned reasons, I take serious exception about the conduct of the Chairman and the Deputy Manager of the respondent bank. The conduct of the Assistant Register of Co-operative Societies also cannot be ignored. This is a glaring instance of high-handedness and arbitrary action on the part of the authorities of the respondent bank in connivance with the Assistant Registrar of Co-operative Societies.
45. The Registrar of Co-operative Societies is therefore, directed to take note of the aforesaid conduct of the then Assistant Registrar of Co-operative Societies, Burdwan - I, (if he is still in service) without any further delay as it is not expected that an officer in the rank of Assistant Registrar of Co-operative Societies will act in such an unusual, illegal and arbitrary manner.
46. For the reasons stated hereinabove, the impugned order of dismissal bearing Order No. CON.203/2000-01 dated 8th May, 2000 issued by the Chief Executive Officer of the Burdwan Central Co-operative Bank Limited being annexure 'J' to the writ petition cannot be sustained in the eye of law and the same is therefore, quashed.
47. The authorities of the Burdwan Central Co-operative Bank Limited including the respondent No.4 are directed to forthwith allow the petitioner to resume his duties in the said bank and pay necessary salary and other allowances attached to his post regularly in future. The respondent authorities are further directed to pay full back wages and other admissible emoluments and service benefits to the petitioner after adjusting the amount already paid to the petitioner towards the subsistence allowances within a period of six weeks from date.
48. This Writ Petition thus succeeds and the same is therefore, allowed.
49. The respondent Nos.3 and 4 are also directed to pay costs of this proceedings to the petitioner assessed at 500 G.Ms. The said costs shall be paid by the respondent No.4 to the petitioner within two weeks from the date of communication of this order.
Under Xerox certified copy of this judgment may be made available to the learned Advocates of the respective parties, if applied for, on completion of necessary undertaking.