Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 708 (CAL)

AJOY KUMAR DAW v. STATE OF WEST BENGAL

2006-11-16

SANJIB BANERJEE

body2006
Before Mr. Justice Sanjib Banerjee, JJ. ( 1 ) THE writ petitioner challenged an order of suspension of June 28, 1995 issued by the Bongaon Central Co-operative Marketing Society Limited, the third respondent, which was based on an enquiry report of June 26, 1995. During the pendency of the matter, an order of dismissal followed. Since the matter had been pending for a long time, the petitioner was permitted to file a supplementary affidavit wherein the order of dismissal was challenged. The petition has been heard as one against both the order of suspension and the subsequent order of dismissal. ( 2 ) THE leave to file supplementary affidavit and challenge the order of dismissal was given in view of the initial order of June 30, 1996 that was passed on the petition. By such order, directions were given for filing affidavits and it was provided that steps taken during the pendency of the writ application would abide by the result thereof. ( 3 ) BY a subsequent order of June 14, 2005, the time to file affidavits in the matter was extended. Only the third respondent, the effective contestant, filed an affidavit on September 1, 2006. In such affidavit a notice of dismissal of November 29, 1995 was relied on. It appears from the affidavit that though such notice was sent under registered post, the same could not be served on the writ petitioner. ( 4 ) IN the supplementary affidavit the petitioner has claimed that the petitioner was not aware of the order of dismissal and came to know of the same only from the opposition filed by the third respondent. In addition to the earlier grounds urged that the Constitution of Enquiry Committee itself was bad and there was gross violation of principles of natural justice, the order of dismissal was challenged as no further show-cause notice had been issued after the order of suspension. ( 5 ) THE third respondent was afforded an opportunity to deal with the supplementary affidavit and in the reply it was contended that the letter of dismissal was duly despatched to the recorded address of the petitioner but the same was returned with the remark that the petitioner was continuously absent from his recorded address. The employer refuted the contention that there was any violation of the principles of natural justice and asserted that enquiry proceedings had been duly held. The employer refuted the contention that there was any violation of the principles of natural justice and asserted that enquiry proceedings had been duly held. It was also suggested that in the circumstances there was no requirement of any further notice being issued after the order of suspension affording the writ petitioner a chance of showing cause as to why he should not be dismissed. ( 6 ) THE petitioner was charged for misappropriating a sum of rs. 33,400/- at the time that the petitioner was in-charge of the cash section of the Co-operative Society. It was alleged in the first notice issued to the petitioner on February 21,1995 that the petitioner had allegedly not deposited a sum of Rs. 20,000/- received from one M/s. Singh and Company in the Society's till and that the petitioner had misappropriated a further sum of Rs. 13,400/- by showing the same as a shortfall in the cash balance. The petitioner countered the charges by his reply of February 27, 1995. He insisted that the sum of Rs. 20,000/- had been disbursed according to the oral instructions of the Chief Executive Officer of the Society. Regarding the sum of Rs. 13,400/-, the petitioner indicated that the matter had been handled by the accounts section and entries had been made in the records by the cash section on the instructions of the accounts section without the cash section, of which the petitioner was the in-charge, being involved in the transactions. ( 7 ) THE Society was not satisfied with the petitioner's explanations and the Chief Executive Officer issued a further notice of March 2, 1995 repeating the charges and calling upon the petitioner to deposit the amount of Rs. 33,400/- failing which appropriate proceedings were threatened to be instituted against the petitioner. ( 8 ) AN Enquiry Committee was thereafter constituted before which the petitioner appeared. It is the petitioner's charge, however, that relevant documents before the Enquiry Committee were not allowed to be inspected by the petitioner. The Enquiry Committee reported adversely on the petitioner's conduct and on the basis of such report, the petitioner was suspended and asked to show-cause as to why he should not be dismissed from service. The petitioner replied to such further show-cause notice and simultaneously challenged the Society's decision and the enquiry report forming the basis thereof. The Enquiry Committee reported adversely on the petitioner's conduct and on the basis of such report, the petitioner was suspended and asked to show-cause as to why he should not be dismissed from service. The petitioner replied to such further show-cause notice and simultaneously challenged the Society's decision and the enquiry report forming the basis thereof. ( 9 ) THE petitioner's grievance was that the Constitution of the Enquiry committee was without any authority, it was also his contention that despite his explanation, the Chief Executive Officer's version was preferred to his without he being favoured with a chance to confront the Superior Officer. The documents relied upon by the Enquiry Committee, according to the writ petitioner, were not made available to the writ petitioner. A further point was urged in course of argument though it did not specifically find place in the writ petition. It was contended that the Enquiry Committee met and heard the matter subsequent to the last time that the petitioner was required to appear before it and this was impermissible and in clear violation of the principles of natural justice. It was contended that such position would be evident from the enquiry report. ( 10 ) THE illegality in the Constitution of the Committee, coupled with at least one meeting having been convened subsequent to the petitioner's last appearance before the Enquiry Committee would point towards the entire matter having been premeditated, particularly, in the context of the petitioner's consistent stand that the sum of Rs. 20,000v- had been disbursed by the petitioner on the instruction of the Chief Executive Officer. ( 11 ) ACCORDING to learned Counsel for the petitioner, the board of a Co-operative Society registered or deemed to be registered under the West Bengal co-operative Societies Act, 1983 has full control over the administration and the business of the society and can exercise powers relating to the management of the society, including the power to appoint, discharge, dismiss or remove employees of the society. He relied on Rule 48 (f) of the West Bengal co-operative Societies Rules, 1987 framed under the 1983 Act. Such rule provides as follows: - "48. He relied on Rule 48 (f) of the West Bengal co-operative Societies Rules, 1987 framed under the 1983 Act. Such rule provides as follows: - "48. Powers of the board.- The board of a Co-operative Society shall have full control over the administration and the business of the society and shall exercise all or any of the following powers as may be provided in the by-laws: - (a ). . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . . . (f) to appoint, discharge or to dismiss or to remove employees of the society; ' Provided that no employee of a Co-operative Society shall be dismissed or removed from service except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges, and where it is proposed, after such inquiry, to dismiss or remove him, until he has been given a reasonable opportunity of making representation on the penalty proposed. (g ). . . . . . . . . . . . . . . . " ( 12 ) LEARNED Counsel has also placed Clauses 14 and 15 of the conditions of service appearing under Rule 108 of the said rules. A portion of rule 15 has also been relied upon by learned Counsel on behalf of the third respondent. ( 13 ) CLAUSE 14 of the conditions of service enumerates the acts that may constitute misconduct on the part of an employee and stipulates the penalties that may be imposed on such employee for such misconduct, "misappropriation" is one of the instances illustrated in Clause 14 and termination of service is also provided as a possible penalty. ( 14 ) CLAUSE 15 provides for disciplinary and appellate authorities and reads thus: - "15. ( 14 ) CLAUSE 15 provides for disciplinary and appellate authorities and reads thus: - "15. Disciplinary and appellate authorities.- (1) For the purpose of imposing any penalty under Paragraph-14, the Board, which is the appointing authority, shall be the 'disciplinary authority', and the general body of members in the general meeting shall be the appellate authority. (2) An employee aggrieved by an order of the disciplinary authority shall have a right to appeal against such order. An appeal shall lie : (1) 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. " ( 15 ) THE provisions of Section 28 and Section 30 of the 1983 Act have also been placed by learned Counsel for the parties. Section 28 permits a government Officer to manage the affairs of the Co-operative Society upon the general body of the society requiring the State Government to make such appointment. Section 30, inter alia, provides for the appointment of an administrator to supersede the normal functioning of a society by its board and vests the administrator with all the authority of the board. These provisions were placed as the third respondent, at the relevant point of time, suffered an administrator being imposed on it. ( 16 ) THE writ petition was resisted by the third respondent on three-fold grounds. It was urged that under Rule 15 (quoted above), an aggrieved employee had the right to prefer an appeal. Since an alternative remedy was available to the petitioner, his grievance by way of the present proceedings should not be entertained. In support of such contention, the judgment reported at 2003 (5) SCC 399 , Seth Chand Ratan v. Pandit Durga Prasad (D) by Lrs. and ors. was cited. Since an alternative remedy was available to the petitioner, his grievance by way of the present proceedings should not be entertained. In support of such contention, the judgment reported at 2003 (5) SCC 399 , Seth Chand Ratan v. Pandit Durga Prasad (D) by Lrs. and ors. was cited. In such judgment, where the Supreme Court was considering a case where notwithstanding an appeal being provided for before the High court an application under Articles 226 and 227 of the Constitution had been filed, it was held at Paragraph-13 as follows: - "13. Even otherwise, the view taken by the Division Bench of the high Court for repelling the objection of the appellant regarding the maintainability of the writ petition that an alternative remedy does not divest the High Court of its powers to entertain petitions under Articles 226 and 227 of the Constitution, has hardly any application on the facts of the present case. It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the Court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or Tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. In the present case, the alternative remedy of challenging the judgment of the Court was not before some other forum or Tribunal. On the contrary, by virtue of sub-section (3) of Section 27 of the Act, the order passed by the Court amounted to a decree against which an appeal lay to the High Court. In the present case, the alternative remedy of challenging the judgment of the Court was not before some other forum or Tribunal. On the contrary, by virtue of sub-section (3) of Section 27 of the Act, the order passed by the Court amounted to a decree against which an appeal lay to the High Court. When the party had statutory remedy of assailing the order passed by the District Court by filing an appeal to the High court itself, he could not bypass the said remedy and take recourse to proceedings under Articles 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of Court fee or deposit of some amount or fulfilment of some other conditions for entertaining the appeal. " ( 17 ) THE second contention on behalf of the Society was that the writ petitioner had participated in the proceedings before the Enquiry Committee and was thus estopped from challenging the Constitution of the Committee. In support of such contention, another judgment of the Supreme Court reported an AIR 1992 SC 717 National High School, Madras v. Education Tribunal and anr. , was relied upon for the following principle laid down in Paragraph-4 thereof: - "4. The argument for the appellant before us is that there is no statutory obligation for the School Committee to conduct the enquiry against the school teacher and the enquiry could be held either by the school Committee or by any third person. In our opinion, it is unnecessary to decide this issue since the appeal could be conveniently disposed of on another ground. It is not in dispute that the respondent himself demanded that the enquiry should be held by educationists other than the School Committee. That request seems to have been necessitated since he has made accusations against the Headmaster of the School. Accordingly, a Committee of outsiders was appointed to hold the enquiry. The respondent participated in the enquiry and did not at any time raise objection as to the jurisdiction of the Committee. He was, therefore, estopped from raising the objection as to the jurisdiction of the School Committee. Accordingly, a Committee of outsiders was appointed to hold the enquiry. The respondent participated in the enquiry and did not at any time raise objection as to the jurisdiction of the Committee. He was, therefore, estopped from raising the objection as to the jurisdiction of the School Committee. Secondly, the Form No, VII (A) relied upon by the Division Bench of the High Court is a form under which the agreement shall be executed by the School Committee while appointing a school teacher. By consent the terms of the agreement could be changed and that is what the parties seemed to have done in this case. " ( 18 ) THE last limb of submission on behalf of the third respondent was that the writ petition was restricted to the order of suspension and upon the petitioner's services having been terminated, the petition had become infructuous. It was submitted that there was no embargo on the Society dismissing the petitioner. All reasonable opportunity had been given to the petitioner to explain his conduct and make good the financial loss said to have been suffered by the Society, The petitioner failed to satisfy the Society or the Committee set up to go into the charges against him and failed to show any reason as to why his services were not liable to be terminated. ( 19 ) ON behalf of the writ petitioner, a judgment reported at 1980 (2)SCC 593 , Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor sabha and Ors. was pressed into service in support of the petitioner's contention that he would be entitled to back wages and other benefits as if his service continued uninterrupted. Paragraph-142 of that judgment where an earlier judgment of the Supreme Court in the decision reported at 1979 (2) SCC 80 , hindustan Tin Works v. Its Employees was quoted, was placed for the proposition that if termination was found to be invalid, the relief of reinstatement with continuity of service ought to be granted. It was submitted that even though the Supreme Court decision was rendered in a matter relating to industrial law, the principle would be applicable in the instance case. Paragraph-142 of that judgment quoting the earlier Supreme Court decision is as follows: - "142. It was submitted that even though the Supreme Court decision was rendered in a matter relating to industrial law, the principle would be applicable in the instance case. Paragraph-142 of that judgment quoting the earlier Supreme Court decision is as follows: - "142. The recent case of Hindustan Tin Works v. Its Employees sets out the rule on reinstatement and back wages when the order of discharge is demolished : (SCC p. 85, para 9)It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary' to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz. , to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. . . . . . . In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. " ( 20 ) THE now-dismissed employee's principal ground of challenge was the composition of the Enquiry Committee. As would be evident from the enquiry report, it was the Chief Executive Officer of the Society upon an alleged order of the administrator, who chose the persons who were to sit on the Committee and two of the members were employees of that Society. It appears that a third, one Atish Biswas who has signed the report as Chairman of the committee, came to be inducted in the circumstances that is presented thus in the report: - "the Assistant Registrar of Co-operative Societies, North 24-Parganas authorized. . . Atish Chandra Biswas, Inspector of Co-operative societies, Gaighata Dev. Block vide his Memo No. 723 dated 30. 03. 95 and requested to be present and extend his Co-operation as a member of the said Committee as prayed by the Society's authority. " ( 21 ) ACCORDING to the petitioner, it was the board, and the board alone which was empowered to constitute a disciplinary Committee. Block vide his Memo No. 723 dated 30. 03. 95 and requested to be present and extend his Co-operation as a member of the said Committee as prayed by the Society's authority. " ( 21 ) ACCORDING to the petitioner, it was the board, and the board alone which was empowered to constitute a disciplinary Committee. In this case, since the administrator was discharging the duties and functions of the board, it was for the administrator alone to constitute the committee and not allow the Chief Executive Officer to undertake that exercise. It was suggested on behalf of the petitioner that there was even more reason to challenge the constitution of the Committee as the apparent appointing authority was, according to the petitioner, the person who instructed the petitioner to disburse the sum of Rs. 20,000/-, the transaction forming the major part of the charge against him. The other part of the report that was placed to sustain the challenge was the recording therein of the petitioner having attended the hearings before the committee on April 25, 1995 and May 6, 1995, while elsewhere in that report the statement of Ranjan Kumar Saha, the Chief Executive Officer, was recorded on June 13, 1995. It was argued that it would appear on the face of the report that such statement was recorded on a date subsequent to the petitioner having been afforded hearing by the Committee. ( 22 ) THERE is substance on both grounds urged on behalf of the petitioner. It is fundamental that a person claimed to be party to a transaction should not be involved in deliberations over the propriety of such transaction. However absurd the justification proffered by the person charged, it is incumbent that a person who has been cited as having instructed him to carry out the transaction should not be involved in the process probing the noticee's conduct in the transaction. In this case, the Chief Executive Officer not only set up the Committee probing the matter but came and deposed before it to belittle the justification pleaded by the employee charged with misconduct. ( 23 ) THE illegality in this case is not merely in the administrator not having discharged his duty in setting up the Committee. The facts do not require any detailed discussion as to whether he had the authority to delegate his duty. ( 23 ) THE illegality in this case is not merely in the administrator not having discharged his duty in setting up the Committee. The facts do not require any detailed discussion as to whether he had the authority to delegate his duty. Even if he did have such authority, he should have been conscious that the delegatee was said to be a party to the transaction which was the subject of the charge of graft against the employee. The superior officer who, according to the writ petitioner, had authorized him to make the disbursement, in effect, became a person charged with the offence, at least as far as the petitioner was concerned. Such superior officer could not, in these circumstances, be directly involved in the process of examining the justification. ( 24 ) THE decision making process was vitiated. In such a case, the plea of alternative remedy of appeal cannot be sustained. The exercise was conducted in violation of the principles of natural justice and the fundamental canons of propriety. ( 25 ) THAT the entire charade was premeditated is further evidenced by the Chief Executive Officer having been called and examined without the petitioner being afforded an opportunity to counter what the superior officer had said. It was not merely robbing the petitioner a chance to cross-examine the person substantiating the charge against him, but receiving evidence without reference to the person sought to be affected thereby. ( 26 ) ALTERNATIVE remedy, as high authorities tell us, is not a bar but a self-imposed restraint exercised by Courts. Ordinarily the writ petitioner takes a chance at his peril as the scope of an appeal is generally wider as far as the merit of the impugned decision is concerned. When an authority, particularly a quasi-judicial or fact-finding authority, acts without jurisdiction or in violation of the principles of natural justice, the decision making process itself is vitiated and the same can be questioned in an application under Article 226 of the constitution of India. ( 27 ) IN any event, a plea of alternative remedy is not easily permitted to be taken at the final hearing. In this case the respondents had not indicated alternative remedy at the outset, and had suffered the interim order for ten years. It is that interim order that called for the steps taken pursuant to the order of suspension being looked into. In this case the respondents had not indicated alternative remedy at the outset, and had suffered the interim order for ten years. It is that interim order that called for the steps taken pursuant to the order of suspension being looked into. The order of dismissal was based purely on the order of suspension which was founded on the enquiry report. It would be harsh to require the writ petitioner to challenge the order of dismissal in fresh proceedings only on the ground that the order of dismissal came subsequent to the institution of the writ proceedings. ( 28 ) ACCORDING to the writ petitioner it was only upon the enquiry report being made available to him that the petitioner came to be aware of the circumstances in which the Committee was constituted. Ordinarily, there is a presumption as to the valid Constitution of a Committee. Despite the challenge in the petition, nothing has been shown by the contesting respondent to demonstrate that the petitioner was aware of the circumstances in which the committee came to be constituted prior to his submitting to the authority of the Committee. The petitioner was not aware of either ground that he has urged, that of illegal and unfair Constitution of the Committee and of matters being received against him by the Committee behind his back, at any stage before being favoured with the report of the Committee. To debar the petitioner on the grounds of estoppel, I would require something more overt than his participation in the proceedings without knowledge of the improper Constitution of the body. ( 29 ) THE writ petition is allowed. The orders of suspension and dismissal are set aside. The report of the Enquiry Committee is set aside. ( 30 ) THE writ petitioner has claimed in the supplementary affidavit that he has remained unemployed during the period following his suspension. This has not been effectively controverted by the contesting respondent. The writ petitioner will be entitled to full wages for the period that he remained suspended and, subsequently, dismissed. He shall be entitled to continuity in service. In the event the writ petitioner has reached the age of superannuation, he would be entitled to such benefits, as he would have been if the orders of suspension and dismissal had not been made. In case he has not reached the age for retirement, he shall be reinstated forthwith. He shall be entitled to continuity in service. In the event the writ petitioner has reached the age of superannuation, he would be entitled to such benefits, as he would have been if the orders of suspension and dismissal had not been made. In case he has not reached the age for retirement, he shall be reinstated forthwith. However, the writ petitioner will not be entitled to claim any promotion that may have been due to him if the orders of suspension and dismissal had not been passed. He will also not be eligible for any increment that may ordinarily have been granted to him in the usual course. He will start at the same scale of pay and position as on the day preceding his suspension but will be entitled to future increments and promotion. I add this caveat as the petitioner's explanation to the first charge made him, at the very least, party to an irregularity involving public funds. ( 31 ) THE writ petition is allowed as above without any order as to costs.