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Rajasthan High Court · body

2009 DIGILAW 241 (RAJ)

Ramjeevan v. Nagaur Central Cooperative Bank Ltd.

2009-01-27

GOVIND MATHUR

body2009
JUDGMENT 1. - Under a charge sheet dated 14.7.2008 the petitioner, a Vyavasthapak, Sainani Gram Sewa Sahkari Samiti Ltd., Sainani, was subjected to disciplinary action as per the provisions of Primary Agriculture Credit Cooperative Society/Large Agriculture Multi Purpose Cooperative Societies Managers' (Selection & Appointment) Service Conditions, 2003 (hereinafter referred to as "the Conditions of 2003"). The President, Sainani Gram Sewa Sahkari Samiti Ltd., Sainani, by an order dated 8.8.2008, holding the petitioner guilty for the charges levelled under the charge sheet dated 14.7.2008, dismissed him from service. Being aggrieved by the same, this petition for writ is preferred. 2. It is contended by counsel for the petitioner that the order impugned dated 8.8.2008 deserves to be quashed being wholly without jurisdiction. It is asserted that as per condition No.34 of the Conditions of 2003 the disciplinary authority of the petitioner is Sanchalak Mandal of the Cooperative Society and no major penalty could be imposed on a Vyavasthapak unless the procedure prescribed under condition No.35(?) is adhered. According to the provision aforesaid to inquire the allegations relating to serious misconduct, an inquiry committee consisting of Technical Assistant and Assistant Executive Officer or Branch Secretary of the Bank concerned is required to be constituted. The inquiry committee so constituted is required to first conduct a preliminary inquiry and if the committee is satisfied prima facie regarding commission of misconduct then a regular inquiry is required to be conducted. A major penalty such as of dismissal from service could be imposed only after holding regular inquiry by the inquiry committee constituted as per the provisions of Condition No.35(?)(2) of the Conditions of 2003. According to counsel for the petitioner in the instant matter no such inquiry committee was constituted and no inquiry at all was conducted before imposing a major punishment of dismissal from service. 3. On the other hand, the stance taken by the respondents is that this Court should not entertain this petition for writ as the petitioner is having an efficacious alternative remedy of appeal as per the Condition No.37 of the Conditions of 2003. It is also asserted that there is no violation of principles of natural justice or any of the conditions prescribed in Conditions of 2003. It is also asserted that there is no violation of principles of natural justice or any of the conditions prescribed in Conditions of 2003. According to the respondents a notice to show cause was given to the petitioner but he did not choose to respond the same, therefore, a presumption of accepting guilt was drawn and adequate penalty was imposed by the President of the Cooperative Society. Counsel for the respondents also pointed out that the petitioner was subjected to the proceedings under Section 57(2) of the Rajasthan Cooperative Societies Act, 2001 (hereinafter referred to as "the Act of 2001") wherein he was held responsible to cause loss to the society and as such holding of an inquiry as per the provisions of the Condition No.35(?) of the Conditions of 2003 should have been nothing but a repetition of process of making probe. 4. Heard counsel for the parties. 5. Before coming to merits of the case, I consider it appropriate to deal with the preliminary objection raised by counsel for the respondents to reject this petition for writ on the count of availability of alternative remedy to the petitioner as per the provisions of the Condition No.37 of the Conditions of 2003. 6. True it is that a remedy of appeal is available to the petitioner under the Conditions of 2003, however, merely on that count this petition for writ cannot be thrown at threshold. The doctrine of exhausting all alternative remedies available before invoking extraordinary jurisdiction of this Court is not a rule of law but a policy and self-retainment adopted by the courts. In normal course a person should not be permitted to invoke extraordinary jurisdiction of this Court without availing other remedies available under general laws, however, wherever it appears to the Court that the person concerned is subjected to extreme hardship by violating his fundamental rights, by ignoring principles of natural justice and doctrine of reasonable opportunity, by taking an action that shocks conscience of the Court, then the Court may exercise its discretion to vanish such hardship. 7. In the present case the petitioner was subjected to very serious allegations and for that he has been dismissed from service. Before dismissing the petitioner from service admittedly no procedure as required under Condition No.35(?)of the Conditions of 2003 was adhered. 7. In the present case the petitioner was subjected to very serious allegations and for that he has been dismissed from service. Before dismissing the petitioner from service admittedly no procedure as required under Condition No.35(?)of the Conditions of 2003 was adhered. An inference is drawn by the President of the Cooperative Society regarding admission of guilt only on the count that the petitioner did not respond to the notice to show cause. In such event the inference as drawn by the President of the Society is absolutely unwarranted. On getting no response to notice to show cause the President of the society should have acted as per the provisions of the Condition No.35 of the Conditions of 2003 by appointing a committee to inquire into the charges. A severe penalty like of dismissal could have been imposed only after holding a regular inquiry as per the provisions of the Conditions of 2003. If any order is passed imposing a severe punishment without adhering the prescribed procedure is nothing but an order lacking jurisdiction. In the case in hand the order impugned is passed by the President of the society in violation of principles of natural justice and also without having jurisdiction to do so, therefore, I am not inclined to reject this petition for writ on the count of availability of alternative remedy. The contention of counsel for the respondents that there was no need to hold an inquiry in view of the fact that the petitioner was subjected to proceedings under Section 57(2) of the Act of 2001, is of also no consequence. The scope of the proceedings under Section 57(2) of the Act of 2001 is absolutely different as it relates to determination of liability for a loss caused to the society and not to determine any misconduct. To establish a misconduct the only procedure that was available to the respondents is as per provisions of the Conditions of 2003. 8. In view of whatever stated above, I am having no hesitation in holding that the order impugned dated 8.8.2008 passed by the President, Sainani Gram Sewa Sahkari Samiti Ltd., Sainani, Tehsil & District Nagaur, is an out come of violation of principles of natural justice and without adhering the procedure prescribed under the Conditions of 2003 for imposing a major penalty. Hence, this petition for writ deserves acceptance and, therefore, the same is allowed. Hence, this petition for writ deserves acceptance and, therefore, the same is allowed. The order impugned dated 8.8.2008 passed by the President, Sainani Gram Sewa Sahkari Samiti Ltd., Sainani, Tehsil & District Nagaur, is hereby quashed. The respondent Cooperative Society is directed to reinstate the petitioner as Vyavasthapak, Sainani Gram Sewa Sahkari Samiti Ltd., Sainani, Tehsil & District Nagaur. The petitioner shall be entitled for all consequential benefits as a consequent to quashing of the order dated 8.8.2008.No order to costs.Writ Petition Allowed. *******