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2000 DIGILAW 232 (CAL)

Balaram Sarkar v. State of West Bengal

2000-05-05

MAHEMMAD HABEEB SHAMS ANSARI, SATYABRATA SINHA

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JUDGMENT Sinha, J. This appeal is directed against a judgment and order dated 29.6.98 passed by a learned Single Judge of this Court whereby and whereunder the appellant has been directed to avail the alternative remedy by way of preferring an appeal as provided in Rule 15 sub-rule (2) of Appendix II, Chapter- VI of West Bengal Co-operative Societies Rules, 1987. 2. The appellant was an employee of the respondent-Co-operative Society. He has been dismissed from service. The grievance of the appellant is that in passing the said order of dismissal, mandatory provision of the statute has been violated. On that ground, the writ application was filed before the learned trial Judge. The learned trial Judge directed : "Thus, without going into the merits of the instant writ application, I refuse to entertain the same on the ground of existence of an alternative remedy. I, however, make it clear that if the writ petitioner prefers any appeal before the appropriate authority as provided in Rule 15 sub-rule (2) of the Appendix II, Chapter-VI of the West Bengal Co-operative Societies Rules, the concerned appellate authority will condone delay, if any, in presenting such appeal and will dispose of such appeal in accordance with law provided the writ petitioner prefers such appeal within a fortnight from date. In view of the fact that the writ petitioner has been dismissed from service, the appellate authority is directed to dispose of such appeal as expeditiously as possible and in no case within three weeks from the date of presentation of this appeal." 3. Mr. Chakraborty, learned Counsel appearing on behalf of the appellant, inter alia, submitted that in the instant case, the remedy by way of an appeal provided for in terms of Rule 15 of Appendix II, Chapter-VI would not be an efficacious one, inasmuch as, in terms of the provisions of the Act and/or the Rules, annual general body before whom the appeal lies, sits only once in a year. It was further submitted that as would appear from the order dated 31.3.98 which is impugned in the writ application the members in an annual general meeting considering all aspects of the matter have all recommended exemplary punishment for the appellant, and the Board of Disciplinary Authority pursuant thereto, unanimously resolved in the board meeting held on 7.2.98 to terminate his service with effect from 1.4.98 or the date of the order of dismissal, whichever is earlier. 4. Rule 15 (2) of Appendix II, Chapter-VI of West Bengal Co-operative Societies Rules, states thus :- "15 (2) An employee aggrieved by an order of the disciplinary authority shall have a right to appeal against such order. An appeal shall lie-(l) against any order passed by the Chief Executive Officer, to the Chairman of the Board, (2) against the order passed by the Chairman or the Vice-Chairman of the Board, to the Board, (3) against the order of the Board, to the general body of the society. Every appeal shall comply with the following conditions: It shall contain all material statements and arguments relied on and shall be complete in itself. It shall specify the relief desired. It shall be submitted through proper channel. The appellate authority shall decide the appeal within two months from the date of submission of the application except where the general body is the authority." 5. It is now a well-settled principles of law that the Court may not exercise its discretion to entertain a writ application when there exists an alternative remedy except in certain class of cases, as has been noted by the Apex Court in (1) Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. reported in 1998 (8) SCC 1 , wherein law has been laid down in the following terms :- "Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural Justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 6. Mr. Bhattacharya, learned Counsel appearing on behalf of the respondent, however, submitted that the order impugned in the writ application was ultimately passed by the Board of Directors, and one or two members of the general body are changed every year. Learned Counsel further submitted that in any event, the appellant being a workman, he could also raise an industrial dispute or take recourse to the provision of Section 2A of the Industrial Disputes Act. Learned Counsel submitted that in the instant case, there has been no violation of any mandatory provisions of the West Bengal Co-operative Societies Act or the Rules framed thereunder, which would enable the writ petitioner/appellant to maintain a writ application. 7. The submissions made by Mr. Bhattacharya need not be considered at this stage, inasmuch as, indicated hereinbefore, the learned Trial Judge has merely proceeded on the basis that there exists an alternative remedy in terms of' Rule 15. It is true that Rule 15 provides for an alternative remedy. However, in the instant case, an extraordinary step had been taken by the Board of Disciplinary Authority, who are the authority to get the matter placed before the general body in a meeting held in the year 1997, and obtained a recommendation for imposing the highest punishment. The Board of Directors had acted pursuant to the aforementioned recommendation. It is, therefore, in our considered opinion, unlikely that the general body would change their mind. The Board of Directors had acted pursuant to the aforementioned recommendation. It is, therefore, in our considered opinion, unlikely that the general body would change their mind. In (2) K. I. Shepherd v. Union of India reported in AIR 1988 SC 686 , the Apex Court has held that when a matter has already been decided by a statutory authority, it cannot be expected that the said authority would consider the matter afresh without in any way being influenced by its earlier order. Having regard to the peculiar facts and circumstances of the case, we are of the opinion that as the general body appears to have already made up its mind by going through the materials-on-record and went to the extent of recommending imposition of highest punishment upon the appellant, asking the appellant to avail of the alternative remedy was not proper in the instant case. For the reasons aforementioned this appeal is allowed. The impugned order is set aside and the matter is remitted back to the appropriate Bench for consideration of the matter afresh. Ansari, J. I agree.