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2013 DIGILAW 153 (CAL)

Chairman, Agriculture and Rural Development Bank Ltd. v. Srikanta Patra

2013-03-14

MURARI PRASAD SHRIVASTAVA, PRANAB KUMAR CHATTOPADHYAY

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JUDGMENT 1. This appeal has been preferred assailing the judgment and order dated 30th June, 2000 passed by the learned Single Judge whereby and whereunder the said learned Judge allowed the writ petition on merits. Going through the records, we find that a disciplinary proceeding was initiated against the respondent/writ petitioner on the basis of the charge-sheet issued on 20th September, 1997. Thereafter, an Enquiry Officer was appointed to hold an enquiry in relation to the said charge sheet. The Enquiry Officer submitted an enquiry report on 16th June, 1998. After submission of the aforesaid report, the Chief Executive Officer of the bank forwarded the said enquiry report and asked the respondent/writ petitioner to submit a written statement on defence. The notice issued by the Chief Executive Officer after submission of the enquiry report is set out hereunder: Memo No. 3C/MARDB/98-99 Date: 29.6.98 To Sri Srikanta Patra, Ex-Branch Accountant, Belda Branch of Midnapore Co-operative Agricultural and Rural Development Bank Ltd., now under suspension. Subject: Proceedings Case No. 3 of 1997 (Midnapore Co-operative Agricultural and Rural Development Bank Ltd. Vs. The notice issued by the Chief Executive Officer after submission of the enquiry report is set out hereunder: Memo No. 3C/MARDB/98-99 Date: 29.6.98 To Sri Srikanta Patra, Ex-Branch Accountant, Belda Branch of Midnapore Co-operative Agricultural and Rural Development Bank Ltd., now under suspension. Subject: Proceedings Case No. 3 of 1997 (Midnapore Co-operative Agricultural and Rural Development Bank Ltd. Vs. Sri Srikanta Patra, Ex-Branch Accountant, Belda Branch of Midnapore Co-operative Agricultural and Rural Development Bank Limited now under suspension) WHEREAS articles of charges were forwarded against for dereliction of duty, defalcation of fund and misappropriation of fund etc.; AND WHEREAS the article of charges along with the list of documents rolled upon and list of witness proposed to be examined were sent to you and duly received by you; AND WHEREAS the substance of imputation of misconduct were brought to your notice and knowledge; AND WHEREAS you were also directed to submit written statement of your defence and you were also given the chance to be heard in person; AND WHEREAS it was also brought to your notice that an enquiry would be held in respect of those articles of charges giving an opportunity to you to specifically deny or admit each article of charge; AND WHEREAS Sri Gopinath Bhuina, Co-operative Development Officer, Midnapore-I Range was appointed Inquiring Authority to enquire into the charges framed against you; AND WHEREAS Sri Gopinath Bhuina, the inquiring authority held inquiry with notice to you; AND WHEREAS in the inquiry report submitted by the inquiring authority it is found that the charge levelled against you were proved and you were found guilty of misconduct, dereliction and negligence of duty, connivance and abetment; AND WHEREAS Sri Gopinath Bhuina, inquiring authority submitted his report stating therein the articles of charges and the statements of imputation of misconduct, misappropriation of funds etc.; AND WHEREAS the inquiring authority also assessed the evidence in respect of each articles of charge with a finding on each article of charge and the reasons thereof; AND WHEREAS a copy of the report of the inquiring authority and the statements of his findings are furnished to you; Now, you are called upon to submit within 15 (fifteen) days on receipt of this notice a written statement of defence regarding the name why punishment should not be imposed against you failing which the authority will take action ex parte. Enclosure: Copy of the report of inquiring authority. Sd/- Chief Executive Officer. 2. The respondent/writ petitioner submitted a written representation in response to the said notice issued by the Chief Executive Officer on 29th June, 1998. Ultimately, by the written communication dated 28th June, 1998, the Chief Executive officer informed the respondent/writ petitioner that by virtue of the decision of the Board of Directors of the Midnapore Agricultural and Rural Development Bank Limited he was dismissed from service with effect from 28th August, 1998. 3. The aforesaid communication of the Chief Executive Officer dated 28th August, 1998 is set out hereunder: To Sri Srikanta Patra, Ex-Branch Accountant, Belda Branch of Midnapore Co-operative Agricultural and Rural Development Bank Ltd. In the matter of proceeding Case No. 3 of 1997 AND In the matter of charge-sheet framed vide memo No. 19/MARDB/97-98 dated 20.9.97. In the matter of disciplinary proceeding and finding thereof; AND In the matter of direction of Board of Directors in respect of result of enquiry and disciplinary proceeding. Please take note that by virtue of decision of Board of Directors of Midnapore Co-operative Agricultural and Rural Development Bank Ltd. You are dismissed from service with effect from 28.8.98. Sd/- M.M. Ghosh Chief Executive Officer. 4. The aforesaid order of dismissal was challenged by the employee concerned by filing a writ petition before this Court on the ground that the provision of Rule 48 (f) of the West Bengal Co-operative Rules 1987 have not been complied with while dismissing the said respondent/writ petitioner from service of the bank. The aforesaid 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. 5. 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. 5. The Learned Single Judge upon considering the materials on record and also considering the submissions of the respective parties held that the charges levelled against the writ petitioner about the lack of supervisory control is vague and there was no opportunity of showing cause to the respondent/writ petitioner before the order of dismissal was communicated to the said respondent/writ petitioner. 6. Mr. Chatterjee, learned Counsel representing the appellant-bank, however, submits that a reasonable opportunity was granted to the respondent/writ petitioner before passing the order of dismissal by the Board of Directors of the appellant/bank. 7. The Learned Counsel appearing for the appellant/bank submits that a sub committee of the Board of Directors considered the case of the respondent/writ petitioner along with other charged employees in its meeting held on 20.05.1998, wherein the report of the Enquiry Officer was considered and a decision was taken to issue show cause notice to the concerned employees including the respondent/writ petitioner. 8. The copy of the minutes of the proceeding of the meeting of administrative sub-committee held on 20.05.1998 has been produced before this Court wherefrom it appears that the members of the said sub-committee considered the enquiry report submitted by the Enquiry Officer. 9. From the records, we find that the Enquiry Officer submitted enquiry report on 16th June, 1998. Therefore, the members of the administrative sub-committee had no occasion to consider the enquiry report of the Enquiry Officer in its meeting held on 20.05.1998. 10. On examination of the minutes of the proceeding of the administrative sub-committee of the appellant/bank on 20.05.1998, we are satisfied that the members of the Board including the Chief Executive Officer, who pre-judged the issues in respect of the respondent/writ petitioner even before the submission of the enquiry report in a most clandestine manner. In the aforesaid minutes, the members of the administrative sub-committee specifically mentioned that the charges framed against the three staff including the respondent/writ petitioner have been established before the inquiring officer when fact remains that the enquiry report was not submitted by that time. 11. In the aforesaid minutes, the members of the administrative sub-committee specifically mentioned that the charges framed against the three staff including the respondent/writ petitioner have been established before the inquiring officer when fact remains that the enquiry report was not submitted by that time. 11. In terms of Rule 48 (f), where it is proposed after the inquiry to dismiss or remove an employee, then a reasonable opportunity of making representation on the penalty proposed should be granted. 12. In the present case, the disciplinary authority never proposed any penalty and, therefore, the question of making any representation to the proposed penalty by the respondent-writ petitioner did not arise. 13. The Chief Executive Officer, however, issued a notice on 29th June, 1998 asking the respondent/writ petitioner to submit a written statement of defence stating why punishment should not be imposed against him but in the said notice, the Chief Executive Officer never mentioned that the disciplinary authority proposed any penalty nor the said Chief Executive Officer communicated any penalty proposed by the disciplinary authority. 14. We do not approve the conduct of the members of the administrative sub-committee of the appellant/bank, who pre-judged the issues and took a decision in order to dismiss the respondent-writ petitioner from the service of the bank and in order to do so, the said members of the administrative sub-committee in the minutes of the meeting recorded that the charges levelled against the respondent/writ petitioner have been established in the Enquiry Report although the Enquiry Report was not filed by that time. The aforesaid act on the part of the members of the administrative sub-committee, should be seriously looked into by the authorities of the Bank. 15. Lastly, the Chief Executive Officer by the written communication dated 28th August, 1998 informed the respondent/writ petitioner that by virtue of the decision of the Board of Directors of the bank-appellant, he had been dismissed from service although the decision of the Board of Directors of the appellant-bank was never communicated to the respondent/writ petitioner. At the time of hearing also, the decision of the Board of Directors of the appellant-bank in respect of the respondent/writ petitioner has not been produced before this Court in order to establish that the Board of Directors took the decision dismiss the respondent/writ petitioner from the service of the Bank. 16. At the time of hearing also, the decision of the Board of Directors of the appellant-bank in respect of the respondent/writ petitioner has not been produced before this Court in order to establish that the Board of Directors took the decision dismiss the respondent/writ petitioner from the service of the Bank. 16. As a matter of fact, the appellant/bank did not follow the provision of Rule 48 (f) of the West Bengal Co-operative Societies Rules, 1987 while conducting the disciplinary proceeding against the respondent/writ petitioner and inflicting punishment of dismissal from service. 17. The Learned Judge, in our opinion, has decided the issues raised in the writ petition strictly in accordance with law and, we find, no error or infirmity in the aforesaid decision of the learned Single Judge. Therefore, we affirm the decision of the learned Single Judge and dismiss the appeal as we do not find any merit. 18. The appellant-bank cannot be asked to reinstate the writ petitioner in service since the said writ petitioner has already attained the age of superannuation. The order of suspension and the order of dismissal have been quashed by the learned Single Judge which we have already affirmed. 19. In view of the dismissal of the appeal, the respondent/writ petitioner should be treated in service all through till attaining the age of superannuation as if no disciplinary proceeding was initiated and punishment was imposed on him. The respondent/writ petitioner, therefore, will be entitled to remove all the service benefits including the salary and allowances from the date of initiation of disciplinary proceedings till the date of attaining the age of superannuation. 20. The appellant will calculate the admissible dues of the respondent/writ petitioner within a period of three weeks from date and distribute the same within a period of two weeks thereafter. 21. There will be no order as to costs. Urgent Xerox certified copy of this order, if applied for, be given to the learned Advocate for the parties on compliance of usual formalities.