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2007 DIGILAW 273 (CAL)

JAHAR LAL GUHA v. STATE OF WEST BENGAL

2007-04-05

JYOTIRMAY BHATTACHARYA

body2007
( 1 ) THE judgment of the Court was as follows:- the legality of the order of dismissal of the petitioner from service, passed by the Chairman of the Kalna Town Credit Co-operative Bank limited on 23rd September, 1997 being Annexure 'd' to this writ petition at page 28, is under challenge in this writ petition at the instance of the dismissed employee. ( 2 ) THE petitioner was the Assistant Manager of the said Co-operative bank. On detection from the records that the petitioner did not deposit various amounts after realisation of the same from different customers of the said Co-operative Bank the petitioner was directed by the Chairman of the said Co-operative Bank by his Order being No. 87 dated 26th May, 1997, to deposit the entire amount which he did not deposit after collection together with interest thereon with the Bank within 31st May, 1997. By the said order, the petitioner was also directed to reconstruct the destroyed and/or torn paper relating to the Gold Loan Register of two of the customers of the said Co- operative Bank in the presence of the Treasurer and to deposit the same with the Secretary of the said Co-operative Bank. ( 3 ) BY the said order, the petitioner was also directed to show-cause within 7th June, 1997 as to why he will not be dismissed from service. ( 4 ) IN compliance of the said direction of the Chairman of the said co-operative Bank, the petitioner deposited the amount which was demanded by the Chairman of the said Co-operative Bank with the said bank within the time which was granted to him for such deposit. ( 5 ) THE petitioner also submitted his reply to the said show-cause notice by his letter dated 6th June, 1997 stating inter alia that he has already deposited a sum of Rs. 40,000/- in cash and a sum of Rs. 13,649/- by cheque with the said Co-operative Bank on 31st May, 1997. The petitioner also expressed therein that he wants to deposit a further sum of Rs. 50,000/- which was kept in deposit with the said Bank in the joint names of the petitioner and his brother. It was also stated therein that in the event it was found that any further amount is payable by the petitioner, the petitioner will pay the same. 50,000/- which was kept in deposit with the said Bank in the joint names of the petitioner and his brother. It was also stated therein that in the event it was found that any further amount is payable by the petitioner, the petitioner will pay the same. With regard to the destroyed ledger paper regarding Gold loan Register, the petitioner stated that the said paper was not in custody of the petitioner. However, he undertook the responsibility to reconstruct the same as per the direction of the Chairman. The petitioner also prayed for pardon by giving a declaration that he would not commit such offence henceforth. ( 6 ) THEREAFTER, the Chairman of the said Co-operative Bank by his letter dated 23rd September, 1997 directed the petitioner to resign from service within three days from the date of receipt of the said letter, failing which the petitioner shall stand removed from service w. e. f. 30th september, 1997. In the said letter it was stated that considering the repentance expressed by the petitioner for the offence he committed and further since he has deposited the entire defalcated money with the Bank, the said Bank decided not to lodge a criminal case against him. ( 7 ) THE legality of the said letter is under challenge in this writ petition. ( 8 ) MR. SANYAL, learned Advocate, appearing for the petitioner submitted that the service of an employee of a Co-operative Society cannot be terminated except by following the procedure as laid down in the proviso to Rule 48 (f) of the West Bengal Co-operative Societies Rules, 1987. Mr. Sanyal further contended that neither any disciplinary proceeding was initiated against the petitioner by his employer nor any opportunity of being heard was given to the petitioner before passing the said order of dismissal. Mr. Sanyal thus contended that apart from violation of the said statutory rules, the service of the petitioner was terminated without following the principles of natural justice. Accordingly, Mr. Sanyal prayed for quashing of the impugned order of termination. ( 9 ) MR. Mr. Sanyal thus contended that apart from violation of the said statutory rules, the service of the petitioner was terminated without following the principles of natural justice. Accordingly, Mr. Sanyal prayed for quashing of the impugned order of termination. ( 9 ) MR. Bihani, learned Senior Advocate, appearing for the respondent co-operative Bank, submitted that though normally service of an employee of a Co-operative Society cannot be terminated without following the procedure as laid down in Rule 48 (f) of the said Rules, but when the petitioner himself admitted his offence in his reply and deposited the defalcated amount and also prayed for pardon by admitting his guilt, no further enquiry is necessary for proving the charges regarding defalcation of fund and/or destruction of the part of the register of the gold loan of the Bank. ( 10 ) MR. Bihani further submitted that enquiry of the charges is needed only when the charges are denied by the employee. Thus, since the employee concerned admitted his offence in his reply, the authority concerned, according to Mr. Bihani, did not commit any illegality by dismissing the petitioner from service by dispensing with the requirement of holding an enquiry for proving the charges against the petitioner. Thus, mr. Bihani supported the action of the concerned Co-operative Bank and prayed for dismissal of the writ petition. ( 11 ) HEARD the learned Advocates of the parties. Considered the materials-on-record. ( 12 ) FOR resolving the aforesaid dispute, this Court feels that Rule 48 (f) requires to be adverted to. As such, Rule 48 (f) is set out hereunder:- "48. Bihani supported the action of the concerned Co-operative Bank and prayed for dismissal of the writ petition. ( 11 ) HEARD the learned Advocates of the parties. Considered the materials-on-record. ( 12 ) FOR resolving the aforesaid dispute, this Court feels that Rule 48 (f) requires to be adverted to. As such, Rule 48 (f) is set out hereunder:- "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: (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, ( 13 ) THE said proviso provides that the service of an employee cannot be terminated without following the two-tire system of the departmental proceeding. ( 14 ) IN the first stage, an enquiry is required to be made after informing the charges labelled against such employee. An opportunity of being heard in respect of those charges should be given to the charged-employee before holding him guilty of such charges. ( 15 ) IF after holding such an enquiry, it is found that the charges labelled against the charged-employee is proved, then the disciplinary authority is required to follow the second stage of the departmental proceeding. ( 16 ) IN the second stage also, a reasonable opportunity of making representation on the penalty proposed against the charged-employee for his dismissal and/or removal, is required to be given to the charged-employee. ( 17 ) THE second stage of enquiry cannot be regarded as an idle formality, as even at that stage the charged-employee can justify that the penalty proposed against him is disproportionate to the offence proved. If such a plea is taken by the charged-employee at that stage, the disciplinary authority, in my view, is required to consider as to whether the proposed penalty is disproportionate to the offence committed by the charged- employee or not. If such a plea is taken by the charged-employee at that stage, the disciplinary authority, in my view, is required to consider as to whether the proposed penalty is disproportionate to the offence committed by the charged- employee or not. ( 18 ) HERE in the instant case, this Court finds that the petitioner replied to the show-cause notice issued by the Chairman of the said Co-operative bank. Even thereafter, no enquiry was admittedly held for enquiring into the charges labelled against the petitioner. ( 19 ) EVEN assuming that in view of the alleged admission made by the petitioner in his reply regarding commission of offence, the enquiry at the first stage of the departmental proceeding can be waived, but still then, dismissal of the petitioner without following the second stage of the departmental proceeding cannot be supported at all, as the second stage of departmental proceeding cannot be regarded as an idle formality. ( 20 ) HERE of course, the charges are very serious in nature. But, no penalty can be imposed without proof of charges. The respondent-Bank, however, claims that in view of the admission made by the petitioner in his reply, charges should be deemed to have been proved. ( 21 ) STILL then, this Court cannot be oblivious about the effect of the meaning of the expression of admission, but at the same time, this Court cannot be unmindful that admission can be explained away by the author making such admission. To constitute admission, statement admitting a fact must be clear, specific and unambiguous. The tenor of the reply shows that whatever steps were taken by the petitioner, were all done to please the Chairman of the said Co-operative Bank, so that future unpleasantness can be avoided. The petitioner never admitted that he defalcated the deposit realised by him from different customers of the said Bank as named in the show-cause notice. The petitioner never admitted that he destroyed a part of the register relating to gold loan of the said Bank. ( 22 ) AFTER all an employee is going to lose his job. As such, the employer should be very cautious about the steps which the employer is required to take under the provision of law before terminating the job of an employee. ( 22 ) AFTER all an employee is going to lose his job. As such, the employer should be very cautious about the steps which the employer is required to take under the provision of law before terminating the job of an employee. ( 23 ) IN the facts of the instant case, this Court has no hesitation to hold that the impugned order of termination was passed by the concerned cooperative Bank without following the procedure as laid down in Rule 48 (f) of the said Rules. The impugned order of dismissal, thus, stands quashed. ( 24 ) THE respondent-Bank is, thus, directed to reinstate the petitioner in service immediately and to pay all back wages admissible to the petitioner after deducting the statutory allowances which was paid to the petitioner during the period of his suspension. ( 25 ) IN the event, however, the concerned Co-operative Bank decides to complete the said departmental proceeding against the petitioner, the employer may do so by holding an enquiry with regard to the charges labelled against the petitioner in the manner as provided under Rule 48 (f) of the said Rules. It is further made clear that in the event the employer feels that the presence of the employee in the office is detrimental to the conduct of the departmental proceeding, the employer may place the petitioner under suspension during the continuance of the departmental proceeding subject to payment of admissible subsistence allowance to the petitioner. ( 26 ) IF, however, it is found that the petitioner has already attained the age of superannuation by this time, in that event the petitioner need not be permitted to resume his duties, but in such a case the respondent co-operative Bank is required to pay all monetary benefits pertaining to the service of the petitioner upto the date of his superannuation by treating him as if he was in service upto the date of his superannuation. Such payment should be made positively within a period of eight weeks from the date of communication of this order. ( 27 ) THE writ petition is thus, disposed of. ( 28 ) LEARNED Advocates for the parties are permitted to take down the gist of this judgment for communication to the respondents, who are directed to act on such communication without insisting for production of the certified copy of this judgment. ( 27 ) THE writ petition is thus, disposed of. ( 28 ) LEARNED Advocates for the parties are permitted to take down the gist of this judgment for communication to the respondents, who are directed to act on such communication without insisting for production of the certified copy of this judgment. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible. .