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2011 DIGILAW 584 (CAL)

Gour Chandra Mukherjee v. STATE OF WEST BENGAL

2011-04-26

DEBASISH KAR GUPTA

body2011
Judgment : This writ application is directed against an order dated October 31, 2007 passed by the respondent No.3 dismissing the petitioner from service of the respondent bank. The petitioner was working for gain under the respondent no.2. while he was posted as Financial Analyst( DGM) at Head Office of the respondent bank, he was served a charge-sheet dated March 24, 2006. He submitted his reply dated May 2, 2006 to the respondent authority. Respondent no.5 was appointed by the Disciplinary Authority to conduct an enquiry in the matter. The Enquiry Officer submitted his enquiry report to the respondent authority. The respondent no.4 by a communication dated October 7, 2006 informed the petitioner that in the enquiry conducted by the respondent no.5 the charges levelled against the petitioner had been proved. In the above communication the respondent no.5 further informed that the respondent no.3 had decided to impose punishment against the petitioner in its meeting dated September 21, 2006. The petitioner submitted his reply dated October 13, 2006 requesting the respondent no.4 to give a copy of the enquiry report before imposing punishment upon him. Thereafter, the respondent authority imposed punishment upon the petitioner dismissing him from the service of the respondent bank by virtue of the impugned order. The petitioner preferred an appeal dated February 16, 2007 for placing the same before the General Body of the respondent bank. But no step was taken by the respondent authorities to consider the above appeal. At the very out set, a preliminary objection is raised on behalf of the respondents with regard to maintainability of this writ application. It is submitted by the learned Counsel appearing on behalf of the respondents that the respondent bank is a Co-operative Society and the same is not an instrumentality of State. According to him, the writ application was not maintainable. It is also submitted that the members of the General Body of the respondent bank are not made parties to this writ application. So, the writ application is liable to be dismissed on the ground of non-joinder of parties. Reliance is placed on the decision of Arjed Ali Gazi Vs. State of W. B. reported in 1990(ii) CHN 284, S. S. Rana Vs. Registrar of Co-operative Societies & Ors., reported in 2006(ii) SCC 634 and Sivaji Vs. Sahakari S. K. Ltd., reported in (2005) 13 SCC 414 in support of the above submissions. Reliance is placed on the decision of Arjed Ali Gazi Vs. State of W. B. reported in 1990(ii) CHN 284, S. S. Rana Vs. Registrar of Co-operative Societies & Ors., reported in 2006(ii) SCC 634 and Sivaji Vs. Sahakari S. K. Ltd., reported in (2005) 13 SCC 414 in support of the above submissions. On the other hand, it is submitted on behalf of the petitioner that in case of breach of principles of natural justice denying right to make representation to the Disciplinary Authority against the findings recorded in enquiry report in a disciplinary proceeding, the law laid down in the matter of Union of India Vs. Ramzan Khan, reported in AIR 1991 SC 471 applies to employees in all establishment whether government or non-government, public or private. It is also submitted by him that in case of violation of statutory rules by a co-operative societies, a writ application is maintainable. The learned Counsel relies upon the decisions of Managing Director, ECIL Vs. B. Karunakar, reported in AIR 1994 SC 1074 , Bhabani Adhikari Vs. W. B. State Cooperative Bank Ltd., reported in 2009(I) CHN 573 in support of his above submissions. I have heard the learned Counsels appearing for the respective parties with regard to the maintainability of this writ application and have considered the facts and circumstances of this case. In this case the main allegation is with regard to violation of the principles of natural justice. According to the petitioner a copy of the enquiry report was not served upon him before imposing punishment in connection with a disciplinary proceeding. It is also the case of the petitioner that according to the provisions of proviso to Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987 (hereinafter referred to as the said Rules, 1987) reasonable opportunity means and includes an opportunity to submit a representation to the enquiry report for consideration of the disciplinary authority at the time of imposing punishment in connection with a disciplinary proceeding. In order to examine the preliminary issue the provisions of Rule 48(f) of the said Rules, 1987 are quoted below: “48. In order to examine the preliminary issue the provisions of Rule 48(f) of the said Rules, 1987 are quoted below: “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 bye-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 is 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, …….” Even if the respondent society is not a “State”, it is duty bound to carry out statutory obligations mandated under the provisions of Rule 48(f) of the said Rules, 1987. In the event the petitioner is affected by non-compliance of the above statutory obligations, this court can pass appropriate order in exercise of power under Article 226 of theconstitution of India for performance of statutory obligations if it appears that for such non-performance, any of the legal rights of the petitioner is infringed. Admittedly, there is a mandatory provision in the above rules to afford a reasonable opportunity to a delinquent employee. It is also not in dispute that the denial of reasonable opportunity to the petitioner has been alleged in the writ application. Therefore, the instant writ application is based on an allegation of breach of a statutory Rules and the same is maintainable. I do not find that the decision of Arjed Ali Gazi(supra) helps the respondents in any way. It is also not in dispute that the denial of reasonable opportunity to the petitioner has been alleged in the writ application. Therefore, the instant writ application is based on an allegation of breach of a statutory Rules and the same is maintainable. I do not find that the decision of Arjed Ali Gazi(supra) helps the respondents in any way. Because it has already been held in the above decision that when the service of an employee of a society has not been controlled by terms of contract, such conditions have been held to be controlled by the provisions of the said Rules, 1987 and in that case an application under Article 226 of the constitution of India is maintainable for examining an allegation with regard to the violation of the provisions of the said Rules, 1987 rules on the basis of the distinguishable facts and circumstances involved in the decisions of S.S. Rana(supra), the question of maintainability has been decided in the matter taking into consideration different provisions of the Himachal Pradesh Cooperative Societies Act, 1968. Therefore, the above decision has no manner of application in this case. Similarly, in the decision of Sivaji (supra), there was no allegation with regard to the violation of any statutory provision. As a result, the above decision has no manner of application in this case. Therefore, this writ is maintainable. With regard to the merits of this case, it is submitted by the learned Counsel appearing on behalf of the petitioner that in view of the settled principles of law that fullest opportunity is to be given to an employee to defend his case in a disciplinary proceeding. According to him, no opportunity was given to the petitioner to submit a representation to the enquiry report prior to imposition of penalty upon the petitioner. Therefore, there was violation of the provisions of proviso to Rule 48(f) of the said Rules, 1987. It is further submitted by him that denial of furnishing a copy of the enquiry report upon the delinquent employee depriving him from submitting representation for consideration of the Disciplinary Authority at the time of imposing punishment amounts to denial of reasonable opportunity. Reliance is placed upon the decision of Managing Director, ECIL(supra) in support of his above submissions. It is further submitted by him that denial of furnishing a copy of the enquiry report upon the delinquent employee depriving him from submitting representation for consideration of the Disciplinary Authority at the time of imposing punishment amounts to denial of reasonable opportunity. Reliance is placed upon the decision of Managing Director, ECIL(supra) in support of his above submissions. It is submitted on behalf of the respondents that a Service Rule was framed by the respondent bank prescribing the condition of service of employees in exercise of power conferred under Rule 108 of the said Rules, 1987. In terms of the provisions of Rule 28 (e) of the aforesaid Rules, there was no obligation for serving a copy of the enquiry report upon a delinquent employee for giving opportunity of submitting representation to the disciplinary authority. Therefore, there was no violation of the principles of natural justice in the instant case. It is also submitted on behalf of the respondents that no prejudice was caused to the petitioner for non-furnishing of the enquiry report upon him. Reliance is placed on the decisions of Sandip Biswas Vs. State of W. B., reported in 2010(i) CLT(HC), State of West Bengal Vs. Banibrata Ghosh, reported in 2009 AIR SCW 1462, Haryana Financial Corportion Ltd. Vs. Kailash Ch. Acharya, reported in 2008 AIR SCW 6055, M.S.U.P. Spinning Co. Ltd. Vs. R. S. Pandey, reported in 2005(8) SCC 364 , R.D. Agarwal Vs. State Bank of India, reported in AIR 2006 SC 2064 , S. K. Singh Vs. Central Bank of India, reported in 1996(6) SCC 415 , Divisional Manager Platation Division Andaman Y Micobar Island Vs. Munna Barrick, reported in 2005(2) SCC 237 and Bank of Patiala Vs. S. K. Sharma, reported in 1996 (3) SCC 364 in support of his above submissions. I have heard the learned Counsels appearing for the respective parties and I have also considered the facts and circumstances of this case. Admittedly, copy of the enquiry report was not served upon the petitioner before passing the impugned order of punishment against the petitioner in the instant case. The copy of the enquiry report was made available to the petitioner subsequently. Therefore, the question which falls for consideration before this court is this whether the action on the part of the respondent authority amounts to violation of principles of natural justice? The copy of the enquiry report was made available to the petitioner subsequently. Therefore, the question which falls for consideration before this court is this whether the action on the part of the respondent authority amounts to violation of principles of natural justice? Under provisions of proviso to Rule 48(f) of the said Rules, 1987, the reasonable opportunity means and includes opportunity of making representation on penalty proposed. In the instant case the provisions of the above Rule were not complied with. That apart rules of principles of natural justice includes an opportunity to make representation to the enquiry report for consideration of the disciplinary authority in view of the settled principles of law as decided in the matter of Managing Director, ECIL(supra). In order to examine the submissions made on behalf of the respondents with regard to the applicability of the Service Rules framed by the respondent bank for guidance and control of services of its employees, the provisions of Rule 108 are quoted below: “108. Conditions of service of the employees of co-operative societies.- The conditions of service of the employees of co-operative societies shall, subject to the terms of specific contract enforceable by law and the provisions of any land for the time being in force, be as enunciated in the Appendix to this Chapter.” The respondent bank framed service rules for control and guidance of the conditions of service of its employees and for adjudication of this case the provisions of Rule 28(e) of the above Rules are quoted below: “(e) for the purpose of imposing any penalty under this rule the appointing authority shall also be the “Disciplinary Authority” and will include the Executive Officer, Managing Director, Secretary or Manager of the Bank, Regional Managers of the Bank and Principals of ACSTI and STAMDI as and when authorized by the appropriate authority. But no penalty shall be imposed until the charges against an employee have been properly enquired into by an Enquiring Officer to be appointed by the Disciplinary Authority and the employee has been given an opportunity for explaining the charges personally and/or in writing. Representation through the recognised Employees’ Association of the Bank my be permitted by the management. Provided that if any Penalty is imposed by any authority other than the Board of Director of the Bank an appeal against the order imposing the penalty shall lie to the Chairman. Representation through the recognised Employees’ Association of the Bank my be permitted by the management. Provided that if any Penalty is imposed by any authority other than the Board of Director of the Bank an appeal against the order imposing the penalty shall lie to the Chairman. When the penalty is imposed or approved by the Directors an appeal shall lie to the General Meeting.” In view of the provisions of Rule 108 of the above Rule, it was open for the respondent authority to frame bye-laws prescribing conditions of service of the employees of the respondent bank. In the instant case bye-laws were framed and for control and guidance of the respondent bank. There was no provision in the above bye-laws for furnishing a copy of the enquiry report to the delinquent employee before imposing punishment upon him in a disciplinary proceeding. It is not in dispute that proviso to Rule 48(f) of the said Rules, 1987, provided for affording reasonable opportunity to a delinquent employee in a disciplinary proceeding. If a statutory provision is pitted against any provision of bye-laws, the statutory rules must prevail. Therefore, the allegations of the petitioner are to be examined in the light of the statutory provisions of Rules 48(f) of the said Rules, 1987. Moreover, the bye-laws can substitute the provisions of statutory rules. But it cannot be used as a shield by the respondent authority to supplant the provisions of statutory rules. Therefore, the allegations of the petitioners are to be examined taking into consideration the provisions of Rule 48(f) of the said Rules, 1987. In view of the settled principles of law as decided in the decision of Managing Director, ECIL(supra) the reasonable opportunity means and includes furnishing of a copy of the enquiry report upon the delinquent employee to enable him to submit a representation to the same before the disciplinary authority prior to imposing punishment upon him. The above principles of law is applicable to employees in all establishments whether government or non-government, public or private. The above principles of law is applicable to employees in all establishments whether government or non-government, public or private. The relevant portions of the decision of Managing Director, ECIL(supra) (at pages 1091 and 1092) are quoted below: “(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan’s case ( AIR 1991 SC 471 ) (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.” Now, the only question which is to be decided is this whether the petitioner was prejudiced due to non-supply of the enquiry report to him. A copy of the enquiry report was made available to the petitioner at the time of hearing of this case. Attention of this court is drawn on the facts that admittedly, the enquiry proceeding took place on several dates from March 27, 2006 to May 19, 2005 behind the back of the petitioner without furnishing any notice upon him. Subsequently, opportunity of hearing was given to him on June 6 and 7, 2005 in course of enquiry proceeding. The petitioner was not in a position to draw the attention of the disciplinary authority towards the above irregularity. Documents and papers had been brought on record in the absence of the petitioner. Those were taken into consideration by enquiry officer for preparing his report. Therefore, the petitioner was deprived of getting the reasonable opportunity in the enquiry proceeding having prejudicial effect on him. In view of the above the impugned punishment required inference. Documents and papers had been brought on record in the absence of the petitioner. Those were taken into consideration by enquiry officer for preparing his report. Therefore, the petitioner was deprived of getting the reasonable opportunity in the enquiry proceeding having prejudicial effect on him. In view of the above the impugned punishment required inference. The decision of Sandip Biswas(supra) has no manner of application in the instant case because no allegation of non-performance of a statutory duty was raised in that matter. In the matter of Banibrata Ghosh(supra) the effect of an interim order passed in an application under article 226 was under consideration. The above issue has no effect on the instant case. In view of the distinguishable facts of the instant case the matters of Haryana Financial Corporation(supra), M.S. U.P. Spinning Co. Ltd.(supra), R.D. Agarwal(supra), S. K. Singh(supra), Divisional Manager Plantation Division Andaman & Nicobar Island(supra) and S. K. Sharma(supra), have no manner of application in the instant case. The disciplinary proceeding under reference is quashed and set aside from the stage of furnishing a copy of the enquiry report upon the petitioner. Since the above enquiry report is now made available to the petitioner leave is granted to him to furnish his representation to the disciplinary authority within a period of two weeks from date. The respondent authority will be at liberty to pass final order in respect of the disciplinary proceeding under reference taking into consideration relevant documents, the enquiry report and the representation of the petitioner to the enquiry report, if any, within the period of four weeks from date. It is, however, made it clear that in the event no representation to the enquiry report is submitted by the petitioner to the disciplinary authority within the period prescribed hereinabove, the authority will be at liberty to pass final order in the disciplinary proceeding within the time prescribed herein above. This writ application is disposed of. There will be, however, no order as costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.