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2011 DIGILAW 669 (CAL)

Ila Chatterjee v. STATE OF WEST BENGAL

2011-05-16

PATHERYA

body2011
Judgment : PATHERYA, J. By this writ petition the petitioner seeks to challenge the order of dismissal dated 9th September, 2006. The case of the petitioner is that she was appointed to the post of Sales Girl and thereafter was promoted to the post of Officer-in-Charge. Disciplinary proceedings were initiated against her and charges framed. By order dated 18th August, 2005, an enquiry officer was appointed to enquire into the charges framed. The said order was forwarded to the petitioner along with a copy of the charges framed and the petitioner was called upon to submit written-statement in her defence, a reply was given. The initial show-cause was not issued to the petitioner and right from the start, the attitude of the respondent was biased and in violation of the principle of natural justice. The copy of the Enquiry Report was not also served to the petitioner. Therefore, there has been a breach of Rule 48(f) of the 1987 Rules and filing an appeal would be a mere formality. In spite of request for supply of documents the same were not supplied. No witness was also called by the Management to prove its case. The reply given to the second show-cause notice has not been considered and the order of dismissal dated 09-09-2006 does not contain reasons and, therefore, is bad and liable to be set aside. Reliance is placed on AIR 2001 SC 343 ; 2002 (3) CLT 29; AIR 1984 SC 505 ; 2009 (1) CHN 573 ; 2006 (5) SCC 88 ; 2002 (5) CLT 527 and 1989 CWN 116. Opposing the said application Counsel for the respondent Co-operative Society submits that this writ petition is not maintainable in view of Rule 108(15) of the 1987 Rules which provides for an appeal. The Enquiry Report contains detailed finding where all points have been covered. All opportunity to defend was given to the petitioner. Therefore, there has been no violation of the principle of natural justice. Rules 68(1) and 68(2) of the 1987 Rules permits inspection of documents by members alone. The petitioner is not a member and, therefore, not entitled to the same. By Board Resolution dated 9th August, 2005, it was resolved to initiate disciplinary proceedings against the petitioner and take steps thereunder. Therefore, there has been compliance with the principles of natural justice and no order be passed on this application. The petitioner is not a member and, therefore, not entitled to the same. By Board Resolution dated 9th August, 2005, it was resolved to initiate disciplinary proceedings against the petitioner and take steps thereunder. Therefore, there has been compliance with the principles of natural justice and no order be passed on this application. In reply, Counsel for the petitioner submits that there has been a breach of statute and as held in the case of Hridanarayan orders be passed. Having considered the submission of the parties, the Enquiry Report was given to the petitioner along with the 2nd show-cause Notice and not prior thereto as held in 1993 4 SCC 727 . Therefore the petitioner was deprived of challenging the Enquiry Report. This principle is to apply to all establishments-government, non-government, private and public sector undertakings. Therefore the respondents have acted in violation of the principles of Natural Justice. A copy of the Enquiry Report was to be furnished before issuance of the show-cause Notice to the delinquent more so as the disciplinary authority and the Enquiry Officer are not the same person. A representation was made by the petitioner. No reason has been given in the Order dated 9.9.2006 for rejecting the petitioner’s representation. The petitioner sought a copy of the Board of Director’s resolution dated 9th August 2005. The only reason for non-supply is Rules 68(1) and 68(2) of the 1987 Rules, which allows inspection to only members of the society. These Rules can have no application to the instant case as the initiation of disciplinary proceedings is on the basis of the said document. Therefore the same ought to have been furnished to the petitioner. The Board of Directors before receipt of the petitioner’s representation has accepted the Enquiry Report. This is reflected in the Order dated 9th September 2006 and amounts to pre-judging the issue. In fact only after considering the petitioner’s representation to the Enquiry Report the 2nd show-cause Notice ought to have been issued. In the 2nd show-cause Notice it has been recorded that the Board of Directors considered the evidence adduced so also the documents produced and then directed issuance of 2nd show-cause notice. No evidence was before the Board of Directors as none was adduced by the Co-operative Society nor was any document produced by it. In the 2nd show-cause Notice it has been recorded that the Board of Directors considered the evidence adduced so also the documents produced and then directed issuance of 2nd show-cause notice. No evidence was before the Board of Directors as none was adduced by the Co-operative Society nor was any document produced by it. From none of the documents, which have been disclosed in the petition, will it appear that the Co-operative Society proved its case. Therefore, the decision of the Board of Directors is without basis and indicates bias. For all the said reasons the Order dated 9th September 2006 is set-aside, so also the 2nd show-cause Notice as it has been issued with a closed mind. This however will not preclude the respondent authorities from proceeding with the enquiry from the stage of issuance of 2nd show-cause Notice after considering the petitioner’s representation to the Enquiry Report but prior to doing so a copy of the Board Resolution be handed to the petitioner. In view of the aforesaid this application is disposed off. (Patherya J.) Later In the event the petitioner is entitled to any retiral benefits and other benefits the same be disbursed to the petitioner within four weeks from the date of receipt of this order. This order is passed as the petitioner has retired from service. All parties concerned are to act on urgent xerox certified copy of this order on the usual undertaking.