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2005 DIGILAW 725 (CAL)

SADIFUL ISLAM MONDAL v. STATE OF WEST BENGAL

2005-12-05

GIRISH CHANDRA GUPTA

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Girish Chandra Gupta ( 1 ) THE writ petitioner was appointed to the post of a guard by a letter dated 24th January, 1998 at a consolidated monthly salary of Rs. 2,2007 -. He used to escort remittance of cash to the bank. He was given an official quarter at a monthly rental at Rs. 2007- per month. The letter of appointment specifically provided that "no other facilities as admissible to a regular staff of the Society would be given". ( 2 ) HE has since then been working in the Barrackpore Central Zone wholesale Consumer's Cooperative Society Ltd. A notice dated 7th May, 2005 was issued to him asking him to disclose about sorra currency notes remitted to the bank. He, in reply to the letter, informed that he did not know anything about the notes because he was merely asked to escort the remittance. By a letter dated 30th May, 2005, the petitioner had been told that his service would be terminated with immediate effect upon approval by the board. The petitioner, in reply, contended that he was not at fault. By a letter dated 28th June, 2005 he was dismissed. The letter dated 28th June, 2005 reads as follows :-"pursuant to the decision of the Board of Directors of this Society in their meeting dated 25. 6. 2005 he is being informed that the Board of directors of this Society has sacked him from the service of this Society on the basis of enquiry report of the then Chief Executive Officer and the report of others. For the above, he is being asked to vacate the room of this Society within 10 (ten) days from the dale of issue of this order. This will be effected from the date of issue of this order. " ( 3 ) IT is not in dispute that no enquiry was held. No charge-sheet was, ever, issued to the petitioner nor was he asked to make his representation to any charge levelled against him. ( 4 ) CHALLENGING the aforesaid order of dismissal, he has come up before this Court praying for quashing of the order of dismissal. ( 5 ) MR. Bhattacharyya, the learned Counsel, appearing for the co-operative society, made the following submissions. . : (a) A writ shall not lie against the Society. ( 4 ) CHALLENGING the aforesaid order of dismissal, he has come up before this Court praying for quashing of the order of dismissal. ( 5 ) MR. Bhattacharyya, the learned Counsel, appearing for the co-operative society, made the following submissions. . : (a) A writ shall not lie against the Society. In support of his submission, he relied on a Full Bench Judgement of the Bombay High Court in the case of S. V. Co-operative Bank Ltd. v. P. P. Bhat reported in air 1993 Bom. Page 91. (b) Referring to Section 95 of the West Bengal Co-operative Societies act, 1993, he submitted that any dispute concerning the business of a co-operative society is referable to arbitration. However, a dispute referring to disciplinary action is excluded from the ambit of arbitration. He submitted that such excluded matters fell for a decision before the Bombay High Court in the case of Ram Bhao and others v. President, Vinkar Co-operative Society Limited reported in AIR 1966 Bombay page 187 wherein the Full Bench opined that the employee concerned has to seek his remedy before the Industrial Tribunal. (c) That the writ petitioner is a contractual employee and, therefore, he has no right to come before this Court nor has he any right to the employment. In-support of his submission, he relied on a judgement of the Apex Court in the case of Director of Institute of management Development-v. Puspa Srivastava reported in AIR 1992 SC page 2070. (d) Lastly, he submitted that the petitioner has not as yet exhausted his remedy. He could have preferred an appeal before the appellate body which he did not do. Therefore, this Court should not entertain this writ petition. ( 6 ) I have considered the submissions made by Mr. Bhattacharya but i have not been impressed by any one of them. ( 7 ) I shall deal with each of the points of Mr. Bhattacharyya in the order he advanced. (a) Section 42 of the West Bengal Co-operative Societies Act, 1983 provides as follows:-" (1) A co-operative society shall appoint, subject to the provisions of sub-section (5) of Section 38, such officers and other employees as may be sanctioned by the Registrar to assist the co-operative society in the performance of its duties and discharge of its functions under this act or the rules. The Registrar shall accord such sanction, or, in case of refusal, intimate to the co-operative society the reasons for such refusal within three months from the date on which any such proposal is submitted by the co-operative society, failing which the sanction shall be deemed to have been accorded by the Registrar. The qualifications and conditions of service of the officers and other employees of the co-operative society shall be such as may be prescribed. (2) (a) The books and registers to be maintained by different classes of co-operative societies shall be such as may be prescribed. (b) The books and registers as aforesaid shall be kept in the custody of such person and in such manner as may be prescribed. Any person who fails or refuses to produce the books and registers when required by the Registrar or any person authorized by him in this behalf shall be punishable with such fine, not exceeding five hundred rupees, as may be prescribed. " ( 8 ) IT would at once become clear from that the terms and conditions of service are governed by law. What is the difference between a contract and a law? A contract is also a law but it is operative between the parties to the contract whereas law is operative and applicable to the people or the class of people in general. It is for this reason that a remedy based on a contract is called a private remedy and a remedy based on law is called a public remedy. Umpteen number of judgments have been delivered by the Apex Court holding that a writ shall lie in the case of a public remedy. Public remedy can only be ^had in those cases where rights and obligations are governed by law. Here is a case where admittedly the rights and obligations of the employees are governed by the section and rules made thereunder. There can thus be no doubt that a writ shall lie. Therefore, the first point raised by Mr. Bhattacharyya is rejected. The judgement, which was cited by him, has no manner of application because only question which fell for consideration before the Full bench was whether a bank discharging an important public function can be brought within the four corners of the definition of 'state'. This question was answered in the negative. Bhattacharyya is rejected. The judgement, which was cited by him, has no manner of application because only question which fell for consideration before the Full bench was whether a bank discharging an important public function can be brought within the four corners of the definition of 'state'. This question was answered in the negative. Even in the case of a bank or a financial institution, engaged in lending money pursuant to the provisions of law, was held to be amenable to writ jurisdiction in the case of Lotus Hotels. The question with which we are concerned is much simpler. b) It is, no doubt, correct that the course suggested by Mr. Bhattacharyya could have been followed. But here there has been utter violation of the law. The order is without jurisdiction and the Writ Court should interfere. It is a case where the writ petitioner has been shown the door for an alleged misconduct without resorting to any enquiry which the employer should not have done. c) The point urged by Mr. Bhattacharyya that it was a contractual appointment has not impressed me either. The letter of appointment already adverted to here in above does not indicate that the appointment is for a fixed period. It is an appointment for an indefinite period. Admittedly, the petitioner has been working for more than six years in a post which appears to be of perpetual requirement. There is nothing to show that it was a contractual appointment. Therefore, the judgement cited by him can have no manner of application to the facts of this case. In that judgement, Their Lordships held that where an appointment is purely on an ad hoc basis or is contractual, that appointment comes to an end by efflux of time. The person holding such a post can have no right to claim or to continue after expiry of the contractual period. Here, there is no time stipulated in the letter of appointment. Therefore that appointment cannot come to an end by efflux of time. There is nothing in the letter of appointment which can suggest that it was a contractual appointment nor was it an ad hoc appointment. d) The question of preferring any appeal does not arise because the order of dismissal has nof been passed in accordance with the rules. Therefore alternative remedy is no bar. There is nothing in the letter of appointment which can suggest that it was a contractual appointment nor was it an ad hoc appointment. d) The question of preferring any appeal does not arise because the order of dismissal has nof been passed in accordance with the rules. Therefore alternative remedy is no bar. ( 9 ) FOR the aforesaid reasons, all the points urged by Mr. Bhattacharyya have failed. ( 10 ) THE writ petition succeeds. The order of dismissal is set aside. The writ petitioner is reinstated with full back wages. The Co-operative Society shall also pay costs assessed at 300 G. Ms, to the writ petitioner.