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1991 DIGILAW 493 (CAL)

Subimal Das v. STATE OF WEST BENGAL

1991-11-26

P.K.Mukherjee

body1991
Judgment 1. THIS writ petition was moved on behalf of the petitioner Subimal Das, Manager of Radharaman Samabaya krishi Unnayan Samily (hereinafter referred to as the said Samity), challenging the impugned order of dismissal from service dated October 26,190 issued by the Secretary of the said Samity. 2. IT appears from the said impugned order, which is Annexure 'h' to the writ petition, that the service of the writ petitioner was terminated with effect from November 1, 1990 and in lieu of notice the petitioner was offered one month's pay which was directed to be collected from the office along with the salary till October 31, 1990. This writ petition was admitted by Mukul Gopal Mukherjee, J. on November 1, 190, but no interim order was granted and on the subsequent date i.e. on November 21,1990 after hearing the submissions of Mr. Milan Chandra Bhattacherjee, learned Advocate for the State, the learned Judge recorded the submission of the said respondent that the 'cadre authority' was the proper authority to initiate disciplinary proceeding against the petitioner and as the same has not been done in the present case the order of dismissal of the petitioner cannot be justified. 3. AT the time of final hearing of the writ petition Mr. Milan Bahttacharjee, learned Advocate for the state, of course has shifted his earlier stand and he produced a Notification dated April 29,1988 issued by the Secretary to the government of West Bengal, whereby the Governor was pleased to exempt the primary Agriculture Cooperative Societies. 4. BE that as it may, at the time of final hearing of the writ petition Mr. Tapan Kumar Mukherjee (III) appearing with Mr. Anil Kumar Das and Mr. Balailal Sau, learned Advocates for the petitioner has canvassed the following points, challenging the aforesaid order of dismissal. Mr. Mukherjee contended in the first place that in view of the provision of Rule 48 (f) of the West Bengal Cooperative Societies Rules, 1987 (hereinafter referred to as the said Rules. No final order could be passed without issuing second show-cause notice in terms of proviso to Rule 48 (f) of the said Rules and as the same has not been admittedly issued in the present case the impugned final order cannot be sustained in law. No final order could be passed without issuing second show-cause notice in terms of proviso to Rule 48 (f) of the said Rules and as the same has not been admittedly issued in the present case the impugned final order cannot be sustained in law. In the second place, he submitted that as no copy of the report has ever been forwarded along with the second show-cause notice, in view of the judgment passed by a Division Bench bench of this Court in the case of Director (Inspection and Quality Control) Export and Import Council of India v. Kalyan Kumar Mitra and Anr., reported in 1987 (2)C. L. J. 344 decided by Bimal Chandra Basak, J. (as His Lordship then was), sitting with Satyabrata Mitra, J. (as His Lordship then was), the final order of termination of service cannot be and should not be effected, 5. NEXT, he submitted that the charges being of vague nature, as will appear from the charge sheet dated December 11,1989, which is Annexure 'd' to the writ petition, it was very much difficult for the writ petitioner to give suitable reply on the basis of the said vague charges which were undoubtedly vague in nature. 6. A specimen of the charge-sheet is given below: - "charge No.-1. You are guilty of insubordination and disobedience as you refused to carry on the agril loan works in the Head Office from 1. 12. 87 inspite of specific direction to that effect. Charge No.- II. You have dishonestly failed/neglected to submit the accounts of the fertiliser business of the Society and defalcated some funds of the Society and also removed necessary papers from the Society to obliterate your guilt. Charge No.- III. You by your gross and habitual negligence of duty made incorrect entries in the cash book specifically in case of repayment of loans by agricultural debtors and in the Deposit Section. Charge No.- IV. You misappropriated Rs. 10. 30 from Late Gobinda Prasad Maiti while disbursing the interest subsidy. Charge No.- V. You realised the dues from Kalipada Samanta and Sudhir Samanta but intentionally omitted to enter the same in the loan ledger and thereby tried to misappropriate the money. Charge No.- IV. You misappropriated Rs. 10. 30 from Late Gobinda Prasad Maiti while disbursing the interest subsidy. Charge No.- V. You realised the dues from Kalipada Samanta and Sudhir Samanta but intentionally omitted to enter the same in the loan ledger and thereby tried to misappropriate the money. change No.- VI you by gross dereliction of your duty and habitual and gross negligence neglected to supervise the accounts of the business sections run by the society though the Board of Directors specifically directed you to look after the same and put signatures on the same as taken of your inspection. Charge No. VII. You by gross and habitual negligence of duty neglected to write out the general ledger which was within your primary duty. Charge No.- VIII. You by wilful insubordination and disobedience refused to acknowledge the receipt of the notices sent to you by the Secretary as Official Communication. Charge No.- IX. You by your wilful omission, to submit monthly reports to the financing central Bank caused damage to me property and reputation of the Society. Charge No.- X. You are found habitually absent without leave and signing attendance register at a time. Charge No.- XI. You gave a written undertaking before A. G. M. on 20. 9. 87 to behave and act properly and in the best interest of the Society but neglected to act accordingly rather against the interest of the Society. Charge No.- XII. You misappropriated the price of the Tamsuk sold by you to the loanee members of the Society amounting to Rs. 141. 00 Charge No.- XIII. As per resolution, instead of Rs. 5,000. 00 cash in hand, you kept Rs. 16,000. 00, 18,000. 00, for your own business purposes. Charge No.- XIV. You enhanced your loan and loan of Sri Basanta Kumar Pradhan by overwriting the amount of money. Mr. Milan Chandra Bhattacherjee, learned Advocate for the State, submitted that as the Samity is being represented by a separate set of counsel, viz. Mr. Pratyush Kumar Ray, he is not in a position to make any submission supporting the action of the said Samity. But he has placed the Notification, referred to here in above, by which the earlier stand taken by him has been withdrawn. 7. MR. Pratyush Kumar Ray, learned Advocate appearing for the respondent nos. Mr. Pratyush Kumar Ray, he is not in a position to make any submission supporting the action of the said Samity. But he has placed the Notification, referred to here in above, by which the earlier stand taken by him has been withdrawn. 7. MR. Pratyush Kumar Ray, learned Advocate appearing for the respondent nos. 4, 5 and 6, submitted that the third show-cause notice had been issued upon the petitioner and a copy of the enquiry report had been supplied along with the second show-cause notice. 8. AFTER going through the relevant averments in the writ petition and the affidavits, I am not in a position to rely on the copy of the second show-cause notice or the enquiry report and as such I am of the view that in the present case the enquiring officer and the disciplinary authority did not proceed fairly, observing the rules, in particular, Rule 48 (f) of the aforesaid Rules and in accordance with the principles of natural justice and fair play. After hearing the respective submissions of the parties, I am of the view that the final order of termination dated October 26, 1990 (Annexure 'h' to the writ petition) cannot be sustained in law and the same should be set aside. The petitioner is directed to be reinstated in service. 9. THIS Court further takes the view that since the charges are vague and trifle in nature the punishment imposed by the disciplinary authority was too harsh and disproportionate and in view of the judgment of the Supreme court in the case of Bhagat Ram us State of Himachal Pradesh, reported in a. I. R. 1983 S. C. 454 subsequently followed by me in the case of Sudhangshu sekhar Routh vs. Union of India and Ors. reported in 1988 (2) C. L. J. 439, this court is of the view that the punishment of termination of service is too harsh and should be interfered with by this Court. 10. reported in 1988 (2) C. L. J. 439, this court is of the view that the punishment of termination of service is too harsh and should be interfered with by this Court. 10. BE that as it may, since the view taken in the case of Bhagat Ram has been distinguished in a subsequent judgment of the Supreme Court in the case of Union of India vs. Paramanand Singh reported in AIR 1989 SC 1185 wherein the Supreme Court has expressed the view that the power to be exercised by the Hon'ble Supreme Court in a proceeding under Article 136 of the Constitution thereby reducing the quantum of punishment, should not have been exercised by the Hon'ble Judges of the High Court in exercising power under Article 226 of the Constitution. That being the present legal position, this Court is of the view that the impugned order should not be sustained only on the ground of non-supply of the enquiry report and non-issuance of the second show-cause notice, as pointed out herein above. 11. ACCORDINGLY, the writ petition is allowed. The impugned order dated October 26, 1990 is set aside. The respondents are directed to allow the writ petitioner to resume his duties within one week from the date of communication of this order. The respondents are also directed to pay all arrear salaries from the date of suspension till the date of jointing. 12. THERE will be no order as to costs. Let xerox copies of this order be made available to the parties on their usual undertakings and upon compliance with necessary formalities. Petition allowed.