JUDGMENT Biplab Kumar Sharma, J. 1. The Petitioner, who retired from service of the Respondents on attaining the age of superannuation, has filed this writ petition challenging the legality and validity of the Annexure-B charge sheet dated 8.1.2009 preceded by Annexure-A superannuation notice dated 01.01.2009, by which it was communicated that although, he would retire from service on attaining the age of superannuation with effect from 31.3.2009 but for the purpose of the contemplated departmental proceeding, he would be deemed to be in the services of the bank without, however, any service benefits. Such a course of action was adopted purportedly in exercise of the powers under Rule 46(c) of the Assam Cooperative Apex Bank Ltd. (Staff Rules, 1980). 2. As stated above, the Petitioner has retired from the bank services with effect from 31.3.2009. The basic thrust of the Petitioner is that the Managing Director of the Bank was not authorised to issue the aforesaid Annexure-A & B impugned superannuation notice dated 01.01.2009 and the charge sheet dated 08.01.2009. According to the Respondent No. 2 i.e. the Managing Director of the bank, the action against the Petitioner by the aforesaid impugned superannuation notice and the charge sheet is the outcome of the resolution adopted by the Board of Directors (in short BOD) in its meeting held on 22.12.2008. Since the whole controversy centres around the said resolution adopted in the meeting held on 22.12.2008, it will be appropriate to refer to the said resolution and the same is quoted below:- Any Other matter (6) Sri Biswajit Phukan, Hon'ble Member and Sri Kartik Das, Hon'ble Member raised the issue of WP (C) No. 5508/05 PIL No. 50 of 2006, apprised the Board that Sri Kina Ram Mech, the then General Manager (Admn.) had filed Affidavits in the said WP (C) No. 5508/05 & SLP (C) No. 21095-21096 of 2007, SLP (C) No. 7118-7119 of 2008 and also the SLP No. 8373-8375/2008 filed with the Hon'ble Supreme Court of India that 3 (three) members of the Administrative Council and Board of Directors who were debarred from participating in the Administrative Council and Board of Directors by the Hon'ble Gauhati High Court by its interim order dated 15.10.07 and final judgment dated 01.02. 0 8 were not defaulters despite of having their outstanding dues/NPAs towards the Bank. 0 8 were not defaulters despite of having their outstanding dues/NPAs towards the Bank. The above 2 (two) members requested the Hon'ble Chairman to take action as deemed proper against the Officer. Resolution No. 36(6) Resolved that the Managing Director would issue Show Cause Notice to Sri Kina Ram Mech, the then General Manager (Admn.) as per provision of Bank's Rule as to why he had submitted affidavits before Hon'ble Courts that the 3 (three) debarred members (Respondent Nos. 9, 12, 15 in WP (C) No. 5508) were not defaulters in spite of having their outstanding dues towards the Bank. The reply of Sri Mech, General Manager should be placed in the Board for perusal and decision of the members. There being no further agenda for discussion, the meeting ended at 4.00 P.M. with vote of thanks from the chair. 3. While Mr. S. Kataki, learned Counsel for the Petitioner submits that it was never the intention of the Board of Directors to take recourse to the provisions of Rule 46(c) of the aforesaid rules and issue the charge sheet to the Petitioner deeming him to be in service inspite of his superannuation, Mr. P.N. Goswami, learned Counsel representing the Respondent bank, submits that the aforesaid resolution of the Board does not carry any other meaning other than what the Managing Director of the bank has interpreted with his consequential action of issuance of Annexure-A & B impugned superannuation notice and the charge sheet. 4. The Petitioner questioned the legality and validity of the impugned superannuation notice and the charge sheet aforementioned by his Annexure-C representation dated 6.4.2009. Upon a reference to the aforesaid resolution of the BOD, he contended that there being no decision to initiate departmental proceeding against him, there was no question of invoking Rule 46(c) by the Managing Director all by himself. According to the Petitioner, the Managing Director of the Bank misdirected himself in interpreting the aforesaid resolution adopted by the BOD. 5. In the counter affidavit filed by the Respondent No. 2, she has supported the action on her part towards issuance of the superannuation notice and the charge sheet. It has been contended that whatever action she has taken, same is pursuant to the aforesaid resolution adopted by the BOD of the bank. 5. In the counter affidavit filed by the Respondent No. 2, she has supported the action on her part towards issuance of the superannuation notice and the charge sheet. It has been contended that whatever action she has taken, same is pursuant to the aforesaid resolution adopted by the BOD of the bank. It has also been contended in paragraph 17 of the counter affidavit that the Board of Directors in its meeting held on 14.5.2009 has declined to accept the representation submitted by the Petitioner against the charge sheet with the further decision to take appropriate steps including appointment of Enquiry Officer at the next meeting of the BOD. For a ready reference, paragraph 17 of the counter affidavit is quoted below: 17. That as regards the statements made in paragraphs 18, 19, 20, 21, 22 & 23 it is stated that the same are mere repetition of the statements and submissions made in the earlier paragraphs of the writ petition. Hence, while categorically denying the correctness of such statements, which are not borne out of the records, the deponent begs to reiterate and reaffirm the statements made in the preceding paragraphs of the instant affidavit. It is stated that as the Petitioner has already submitted his reply to the show cause notice, in terms of the aforesaid resolution of the BOD dated 22.12.2008, the same was placed in the BOD meeting dated 14.05.2009. Upon consideration of the reply, the BOD declined to accept the same and decided to take appropriate steps, including appointment of enquiry officer at the next meeting of the BOD. The deponent craves leave of this Hon'ble Court to produce, rely upon and refer to the records of the disciplinary proceedings initiated against the Petitioner in support of the contentions made in the instant affidavit. 6. Although in the aforesaid paragraph 17 of the counter affidavit, the resolution adopted by the BOD in its meeting held on 14.5.2009 has been referred to but the copy of the same having not been annexed to the counter affidavit nor the records produced by Mr. P.N. Goswami, learned Counsel representing the Respondent bank having not contained the same, he was requested to produce the copy of the resolution adopted on 14.5.2009. 7. After the aforesaid request, Mr. Goswami has produced the certified copy of the resolution adopted by the BOD in its meeting held on 14.5.2009. P.N. Goswami, learned Counsel representing the Respondent bank having not contained the same, he was requested to produce the copy of the resolution adopted on 14.5.2009. 7. After the aforesaid request, Mr. Goswami has produced the certified copy of the resolution adopted by the BOD in its meeting held on 14.5.2009. The resolution under agenda item No. 16 reads as follows:- Resolution No. 16 The Board perused the reply of Sri Kina Ram Mech in response to the Show Cause Notice served upon him and found the same not acceptable. However for further decision be it resolved to defer the matter till the next meeting of the BOD. Resolved further that the Managing Director be advised to convene a meeting of the BOD very shortly and the matter relating to Show Cause Notice against Shri Kina Ram Mech be incorporated in the agenda item for the meeting for necessary decision. 8. On perusal of the aforesaid resolution, what has transpired is that although the BOD has declined to accept the written statement but the matter has been deferred to the next meeting for further decision. Thus, no decision has been taken by the Board regarding initiation and/or continuation of any departmental proceeding against the Petitioner. There is no mention of taking "appropriate steps, including appointment of Enquiry Officer" at the next meeting of the BOD. However, in the above quoted paragraph 17 of the counter affidavit, an impression has been given that the BOD not only has declined to accept the representation submitted by the Petitioner against the charge sheet but has also decided to take appropriate steps including appointment of Enquiry Officer in the next meeting of the BOD. 9. If the statement made in paragraph 17 are read without reference to the above quoted agenda item No. 16, one will get an impression that the BOD has already taken the decision to go ahead with the departmental proceeding against the Petitioner and for the purpose appropriate steps would be taken in the meeting of the next BOD including that of appointment of Enquiry Officer. This is absolutely a misleading statement which is not expected of an officer of the State Government presently entrusted with the duties and responsibilities of the Managing Director of the Bank. 10. This is absolutely a misleading statement which is not expected of an officer of the State Government presently entrusted with the duties and responsibilities of the Managing Director of the Bank. 10. The Board resolution adopted by the BOD to issue the Show Cause Notice was only on the basis of some discussions made by two of the members of the BOD. The issue relating to initiation of departmental proceeding against the Petitioner was not in the agenda item of the BOD's meeting held on 22.12.2008. It was only under "any other matter" when two of the members raised the issue relating to filing of affidavits by the Petitioner in some legal proceedings. Admittedly, there was no records pertaining to those affidavits and/or any other material before the BOD so as to take a decision to initiate departmental proceeding against the Petitioner. There was not even any contemplation. It was only on the basis of the discussion made by two of the members, the Board resolved to issue a Show Cause Notice to the Petitioner with the further resolution that the reply of the Petitioner should be placed before the BOD for perusal and further decision in the matter. The learned Counsel for the parties have submitted that the BOD acts as the disciplinary authority. 11. It is in the above context, it is the case of the Petitioner that the only resolution adopted by the Board was to issue a show cause notice to the Petitioner asking him to furnish reply and it was only thereafter the BOD had to take a decision as to whether the Petitioner should be proceeded with by way of initiation of departmental proceeding. It is in this context, Mr. Kataki, learned Counsel for the Petitioner referring to Annexure-A superannuation notice submits that there was only contemplation of a departmental proceeding and the stage which can be said to be the stage of initiation of departmental proceeding did not reach. In this connection, he has placed reliance on the Division Bench judgment of this Court reported in (1992) 1 GLR 309 Pannalal Ganguli v. State of Tripura and Ors. In this connection, he has placed reliance on the Division Bench judgment of this Court reported in (1992) 1 GLR 309 Pannalal Ganguli v. State of Tripura and Ors. in which this Court referring to the expression "disciplinary proceeding is contemplated" upon a reference to the Full Bench decision of the Allahabad High Court finds mention in the judgment, held that the expression means that the thought of initiation of disciplinary proceeding is in the mind of a disciplinary authority but the same has not yet been materialised with the issuance of any charge sheet. 12. In the instant case, the BOD on the basis of the discussions made by two of its members, decided to issue a show cause notice only for further consideration of the matter on receipt of the reply of the Petitioner. However, taking the said resolution to be the resolution for initiation of departmental proceeding against the Petitioner, the Respondent No. 2 i.e. the Managing Director of the bank issued the superannuation notice dated 01.01.2009 deeming the Petitioner to be in services of the bank for the purpose of the departmental proceeding and thereafter issued the Annexure-B charge sheet dated 08.01.2009. 13. In the charge sheet as many as 5 (five) charges have been leveled against the Petitioner and by the Annexure-A superannuation notice dated 01.01.2009 the Petitioner was conveyed the decision to continue him in service as per provisions of Rule 46(c) of the aforesaid rules. Neither the Annexure-A superannuation notice dated 01.01.2009 nor the charge sheet dated 08.01.2009 (Annexure-B) could be said to be outcome of the aforesaid resolution inasmuch as in the said resolution, there was no indication of issuance of charge sheet and/or issuance of notice to the Petitioner deeming him to be in service for the purpose of a departmental proceeding. Whatever action has been taken, same is the own perception and interpretation of Respondent No. 2 about the aforesaid resolution. As indicated above, she has also made incorrect statement in the counter affidavit, which Mr. Kataki, learned Counsel for the Petitioner submits to be intentional. In the BOD meeting held on 14.5.2009, the matter was deferred for further continuation and no decision was taken to take appropriate steps along with appointment of Enquiry Officer. As noted above, there is no such reflection in the resolution No. 16 adopted by the BOD in its meeting held on 14.5.2009. 14. Mr. In the BOD meeting held on 14.5.2009, the matter was deferred for further continuation and no decision was taken to take appropriate steps along with appointment of Enquiry Officer. As noted above, there is no such reflection in the resolution No. 16 adopted by the BOD in its meeting held on 14.5.2009. 14. Mr. Kataki, learned Counsel for the Petitioner has placed reliance on two decisions of this Court pertaining to applicability of Rule 46(c) of the aforesaid rules. The first decision is dated 18.1.2008 in WP (C) No. 7420 of 2004 Prabindra Nath Bhattacherjee v. Assam Co-operative Apex Bank Ltd. Following the decision, the second decision was given on 27.4.2009 in Samiran Chandra Paul v. Assam Co-operative Apex Bank Ltd. WP (C) 699 of 2009. In both the decisions, it has been held that Rule 46(c) does not come into operation in case of contemplated departmental proceeding but comes into operation in case of pending departmental proceeding. In the instant case, on the date of the resolution of the Board dated 22.12.2008, there was no departmental proceeding pending against the Petitioner and if that be so, Rule 46(c) could not have been invoked. 15. Mr. Goswami, learned Counsel representing the bank, submits that since the BOD in its meeting held on 14.5.2009 has considered the course of action adopted by the Managing Director of the Bank to be the correct course of action. Suffice is to say that the matter will have to be decided as it was at the time of passing the impugned order and not on the basis of the subsequent development made in the case and/or by filling any affidavit. It is in this context, Mr. Kataki, learned Counsel for the Petitioner has placed reliance on the Case of M.S. Gill reported in (1978) 1 SCC 405 . 16. A decision to initiate departmental proceeding is taken on the basis of materials placed or otherwise came to the notice of the disciplinary authority which in the instant case is the BOD. In the meeting held on 22.12.2008, there was no agenda item relating to the allegation against the Petitioner and thus naturally there was no occasion to place any material before the BOD. A mention was made by two of the members about the affidavits filed by the Petitioner in some legal proceedings. In the meeting held on 22.12.2008, there was no agenda item relating to the allegation against the Petitioner and thus naturally there was no occasion to place any material before the BOD. A mention was made by two of the members about the affidavits filed by the Petitioner in some legal proceedings. Those documents and materials were not called for and the BOD simply resolved to issue show cause notice to the Petitioner for further course of action. However, the Respondent No. 2 acted as the super and/or extra-disciplinary authority towards issuance of the impugned orders without any decision of the BOD to that effect. 17. For all the aforesaid reasons, I am inclined to accept the writ petition. Consequently Annexure-A & B impugned orders dated 01.01.2009 and 08.01.2009 stand set aside and quashed. 18. The writ petition is allowed. There shall be no order as to costs. Petition allowed.