Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 754 (CAL)

Dilip Kumar Mukherjee v. State of West Bengal

2013-10-03

NADIRA PATHERYA

body2013
Judgment : Nadira Patherya, J. By this writ petition the petitioner seeks for cancellation of the suspension order dated 21st October, 2009 so also cancellation of the order of dismissal dated 28th December, 2010 amongst other reliefs. The case of the petitioner is that the petitioner was discharging his duties as Chief Executive of the respondent No. 4 Co-operative Bank. In course of discharge of his duties, the petitioner is to receive withdrawal intimation slip in case a constituent is desirous of withdrawing monies from the co-operative bank. The said information given in the withdrawal slip is entered in the computer and the slip is made over to the constituent. A requisition slip was put in by A/c. Holder No. 17 and on completion of formalities monies was disbursed to him. On the alleged ground of non-receipt of sums and wrongful debit a complaint was filed by A/c. Holder No. 17 and on such complaint the petitioner was placed under suspension and disciplinary proceedings initiated against him. A charge-sheet was issued to which a reply was given by the petitioner. The same was issued by an authority who was not empowered to do so. Without considering the same the enquiry was proceeded with. This renders the enquiry proceedings a nullity. Non-consideration of the deposition reflects the bias attitude of the enquiry officer, which renders his finding perverse. The Enquiry Officer exceeded his jurisdiction by considering a charge not before him. The report of the Enquiry Officer did not consider the petitioner's representation. The disciplinary authority did not prove the charge and for assigning no reasons the order of dismissal be set aside. Under Clause 2(iii) of the 2008 Service Rules of the respondent Cooperative Bank the disciplinary authority is the Board of Directors and under Section 48(f) of the 1987 Rules it is the Board of Directors which is to dismiss an employee. Clause 29(B) of the 2008 Service Rules specifically provides that Department enquiry is to be effected as per the specified procedure or Discipline and Appeal Rules under the 1983 Act and 1987 Rules. The charge-sheet was required to be issued by the Board of Directors being the disciplinary authority but the charge-sheet was issued by the Chief Executive Officer, therefore the charge-sheet is bad. The charge-sheet was required to be issued by the Board of Directors being the disciplinary authority but the charge-sheet was issued by the Chief Executive Officer, therefore the charge-sheet is bad. On 25.6.2009 the delinquent received the intimation slip but the charge levelled is that the registration made by him was without receiving the intimation slip and the same was also not given by him for binding or preservation. This was not the task of the petitioner. To the charge-sheet which is no charge-sheet a reply was given by the delinquent. At hearing the complainant though cross-examined was not examined in the presence of the petitioner. It is on the basis of such invalid proceedings that the Enquiry Report was submitted. The Enquiry Officer did not rely on the report of Ascent Technologies which categorically stated that a withdrawal notice had been registered on 27.6.2009 @10:48:53 for 3,90,000/- in respect of Account No. 17. This matched with the document produced by the petitioner but the finding of the Enquiry Officer is to the contrary. Conducting the examination of the complainant in the absence of the delinquent vitiates the proceedings. The Enquiry Officer has relied on the evidence of Ratna Bhowmick (PW 5) who stated in her evidence that no intimation slip was given between 19.6.2009 and 29.6.2009, but this is contrary to the documents on record which show that on 29.6.2009 an intimation slip was filed for payment on 30.6.2009 for sums exceeding Rs. 50,000/-. This was specifically stated in the petitioner's reply to the Report of the Enquiry Officer but the same was not considered prior to passing the order of dismissal. The procedure followed for disbursing sum is that an intimation slip is given if withdrawal is to be made on the same day. In case payment is required on the next day, the Manager's consent is needed. That this is the procedure will also be evidenced from the deposition of PW 5 Ratna Bhowmick. In all 6 witnesses were examined. By placing reliance on the evidence of PW 5 (Ratna Bhowmick) the Enquiry Officer concluded that no money had been disbursed. The deposition of the other witnesses, namely Abhijit Chatterjee (Software Analyst), Dipak Saha (employee), Brojogopal Goswami (Manager), Dulal Das and Gobinda Mukherjee were not relied on. The evidence of Ratna Bhowmick PW 5 was also not relied on in its entirety. The deposition of the other witnesses, namely Abhijit Chatterjee (Software Analyst), Dipak Saha (employee), Brojogopal Goswami (Manager), Dulal Das and Gobinda Mukherjee were not relied on. The evidence of Ratna Bhowmick PW 5 was also not relied on in its entirety. Relying on the deposition of the complainant and part deposition of PW 5 the Enquiry Officer came to a conclusion and filed his report on basis thereof. The finding in the report of the Enquiry Officer is perverse as the same is contrary to the materials on record. The first day of hearing was on 2nd May, 2010 and the second day of hearing was on 8th May, 2010 on which day it was submitted by the advocate for the petitioner that an order was passed by the High Court permitting the petitioner to engage a lawyer to defend his case. Accordingly the hearing was adjourned till 15th May, 2010 but from the records of the proceedings it appears that the complainant was examined on 8.5.2010. This evidences that the examination of the complainant was in the absence of the petitioner. The reply given by the petitioner to the enquiry report was disposed of on 8.12.2010 and on consideration thereof it was proposed to dismiss the petitioner. To such proposed punishment reply was given on 8.12.2010. Reliance is placed on the decision reported in AIR 1966 Madhya Pradesh 193, 1993 (3) SCC 219 and 2006 (12) SCC 284 for the proposition that in case the charge sheet has not been issued by the authority who ought to have issued the same, the charge sheet be quashed. The charge sheet and imputation of charges does not reflect the correct state of affairs and therefore vitiates the proceedings as held in (2007) 2 CLJ 209 . The charge with regard to intimation slip is vague and amounts to suppression of material facts. The enquiry officer is to act fairly and as no charge of verification of intimation slip was made but the said was included by the Enquiry Officer, the enquiry officer exceeded his jurisdiction. For what constitutes the duty of an Enquiry Officer reliance is placed on 2006 (5) SCC 88 . While including the said charge the duties of the delinquent should have also been stated. For what constitutes the duty of an Enquiry Officer reliance is placed on 2006 (5) SCC 88 . While including the said charge the duties of the delinquent should have also been stated. As the decision is by the Board of Directors the petitioner's right to appeal has been taken away as held in (2010) 2 SCC 772 . It is the duty of the Enquiry Officer to conduct the proceedings in a fair manner. The perversity in the findings is apparent and as held in (2010) 3 CHN Calcutta 253 the Enquiry Report be set aside. Charge is to be specified and the enquiry proceedings must be fair as held in (2009) 2 SCC 570 . Reasons must be assigned as the order of dismissal is to lead to civil consequences as held in (2010) 2 WBLR 487, (2010) 2 SCC 497 and (2009) 2 SCC 570 . Rule 2(iii) of the 2008 Service Rules postulates that the disciplinary authority is the Board of Directors and therefore the charge sheet should have been issued by the Board of Directors and not by the Chief Executive Officer. Rule 48(f) of the 1987 Rules has been violated as the charge sheet was not issued by the Board of Directors. Reliance is placed on (2004) 1 WBLR 976 and AIR 1999 SC 789. Rule 23 of the 2008 Service Rules provides that before initiation of the disciplinary action the particulars of the charge is to be informed to the delinquent and an explanation be called. This has been done in the instant case. Rule 31(a)(ii) of Service Rules is equivalent to Rule 48(f) of the 1987 Rules. Clause 29(B)(vi) also specifically states that the departmental inquiry is as per the specified procedure set out in the West Bengal Co-operative Society Rules and Act. Reliance is placed on (2009) 1 CHN 573 , (1991) 3 SCC 291 . Therefore by incorporation the West Bengal Co-operative Society Act and Rules has been made applicable to the departmental inquiry. No reasonable opportunity was given to the petitioner and as held in (2009) 1 CHN 573 , the writ petition is maintainable. Reliance is also placed on (2011) 2 WBLR (Cal.) 793. Therefore orders be passed as sought. Therefore by incorporation the West Bengal Co-operative Society Act and Rules has been made applicable to the departmental inquiry. No reasonable opportunity was given to the petitioner and as held in (2009) 1 CHN 573 , the writ petition is maintainable. Reliance is also placed on (2011) 2 WBLR (Cal.) 793. Therefore orders be passed as sought. In opposing the said writ petition it has been submitted on behalf of the Co-operative Society that recording was made in the intimation slip on 25th June, 2009 and the specific signature card of the account holder was changed. Money is recorded as paid on 27th June, 2009 at 10.30 am although monies was paid at 2 pm. Four persons were involved in disbursing the sum of Rs. 3,90,000/-and proceedings have been initiated against each of them. The writ petition is not maintainable as the co-operative society is not a State. There is also no breach of the statutory provisions of the 1983 Act. The conditions of service is guided by the Service Rules which is not statutory in nature and governs the employment of the petitioner. Therefore the dispute is governed by a contract between the parties to which the petitioner is a signatory. In W.P. 9479 of 2010 which is pending for adjudication two reliefs sought herein are similar in nature. The petitioner has knowledge of the 2008 Service Rules and as the provisions of Rule 108 of the 1987 Rules have not been adopted in the Service Rules, therefore a contractual relationship exists between the parties and no writ can be issued. Reliance is placed on (1990) 2 CLJ 456 , (2006) 11 SCC 634 , (2010) 1 CLT 643 and (2009) 1 CHN 573 . Rule 69 of the 1987 Rules permits application of the Appendix to Chapter VI to the conditions of service of the employees of a co-operative society provided the Board does not formulate conditions of service through bipartite agreement. In the instant case bipartite agreement exists between the management and employees union which has culminated in the 2008 Service Rules. The decision reported in (1991) 3 SCC 291 is distinguishable on facts as the case was against HPTD which is a State under Article 12, therefore the said decision is not applicable to the facts of this case. In the instant case bipartite agreement exists between the management and employees union which has culminated in the 2008 Service Rules. The decision reported in (1991) 3 SCC 291 is distinguishable on facts as the case was against HPTD which is a State under Article 12, therefore the said decision is not applicable to the facts of this case. Similarly (2011) 2 WBLR (Cal) 793 is not applicable as aviation company is a State as will appear from paragraphs-76 and 83 of the said decision. Rule 69(3) of the 1987 Rules makes applicable the Appendix to Chapter VI to the conditions of service of an employee of a co-operative society. No element of the said Rules has been incorporated in the Service Rules. Reliance is placed on (1990) 2 CHN 284 . The charge sheet resulted in the enquiry report which was sent to the officer, a reply was given and the Board of Directors took a reasoned decision. As a decision was taken not to differ from the decision of the Board of Directors, the punishment proposed was intimated to the delinquent and a representation was called for. On consideration of such representation a finding was made. The writ court is not to sit in appeal and cannot appreciate the evidence. The scope of judicial review has been set out in (1995) 5 SCC 762 and (2009) 2 CHN 203 . The charge sheet was issued pursuant to a Board resolution by the Chief Executive Officer. Even if it was not issued under authorization of the Board of Directors, it is to be upheld as held in (1997) 6 SCC 75 , (1997) 11 SCC 17 and (1993) 1 SCC 419 . AIR 1966 MP 193 has been overruled in (1970) 1 SCC 108 . The 2008 Service Rules is silent as regards the issuing authority of the charge sheet. Rule 2(ii) of the 2008 Service Rules deals with only the disciplinary authority. The charges against the delinquent is with regard to the registration in computer without receiving an intimation slip and not giving the intimation notice for binding. A reply was given on 21st November, 2009 to the charge sheet. Rule 2(ii) of the 2008 Service Rules deals with only the disciplinary authority. The charges against the delinquent is with regard to the registration in computer without receiving an intimation slip and not giving the intimation notice for binding. A reply was given on 21st November, 2009 to the charge sheet. The charge brought against the delinquent was that no intimation slip was given by the complainant as he did not come to the bank and even in examination so also cross-examination the evidence of the complainant on this aspect could not be dislodged. The representation was disposed of on 8.12.2010 and proposed penalty intimated to the delinquent. As the Co-operative Society is not a State and no statutory breach alleged in view of the decisions reported in (1969) 1 SCC 585 , AIR 1963 SC 404 , AIR 1969 SC 983 , AIR 1963 SC 1723 , AIR 1972 SC 2182 , (1999) 5 762, (2006) 2 SCC 373 and (2009) 2 CHN 203 no writ will lie. Rule 48(f) of the 1987 Rules has been followed. The decisions cited by the petitioner is against the State undertakings and is distinguishable on facts, therefore this application merits no order. Counsel for the petitioner in reply submits that Part A of the Service Rules contains the preamble which governs the service conditions. The said Service Rules has been formulated under the proviso to Section 69(3) of the 1987 Rules. Rule 3 of the Service Rules be considered. The charge is founded on Rule 27(j) of the 2008 Service Rules and there is gross violation of Rule 31(a)(ii) as no hearing was given. The disciplinary authority viz. the Board of Directors did not prepare the charge sheet but only approved it. This will appear from the resolution dated 23rd November, 2009. The Chief Executive Officer was also not authorized to send it. Therefore there has been violation of Rule 33. The appointing officer of the delinquent is the Board of Directors and not the Chief Executive Officer, therefore the charge should be issued by the Board of Directors. The decisions reported in (1997) 6 SCC 75 , (1997) 11 SCC 17 , (1993) 1 SCC 419 are distinguishable as each of the case is under Articles 309 and 311(2) of the Constitution of India related to a government employee. The decisions reported in (1997) 6 SCC 75 , (1997) 11 SCC 17 , (1993) 1 SCC 419 are distinguishable as each of the case is under Articles 309 and 311(2) of the Constitution of India related to a government employee. According to the Co-operative society the enquiry report is based on materials on record. This is incorrect as the enquiry report was prepared without appreciating the deposition. The Enquiry Officer has acted beyond jurisdiction by inquiring into charges not leveled against the delinquent and calling for verification of the intimation slip. The preliminary deposition of Dipak Saha was considered but not the deposition before the Enquiry Officer therefore report of the Enquiry Officer is perverse. The representation has also not been considered and although the second show cause notice was issued and a representation given but no personal hearing as per Service Rules was given, therefore the representation was not considered in its true perspective. No corrigendum has been issued and mistake not mentioned. Non-application of mind is apparent and as withdrawal without slip is not possible, therefore the slip exists. Difference of opinion with reasons must be given and in view of no reasons given the order of dismissal is liable to be set aside as held in (2009) 1 CHN 573 . The decisions cited are distinguishable. The scope of judicial review has been considered in (2003) 2 SCC 107 . Therefore orders be passed. Having considered the submissions of the parties under Rule 69(3) of the 1987 Rules the service conditions of an employee is as laid down under the Appendix to Chapter VI but the proviso to Rule 69(3) of the 1987 Rules empowers the Board of the Cooperative Society to formulate other conditions of service preferably through a bipartite settlement. Such bipartite settlement was entered into on 15th January, 2008 and the 2008 Service Rules framed thereunder is in force. In Chapter IX of the 2008 Service Rules the procedure to be followed in case of disciplinary action is set out. Rule 29(B) of the 2008 Rules has allowed a departmental enquiry to be undertaken as per established and specified procedure or as per Discipline and Appeal Rule under the 1983 Act and 1987 Rules. Rule 31 of the 2008 Rules has laid down the procedure to be followed in a domestic enquiry. Rule 29(B) of the 2008 Rules has allowed a departmental enquiry to be undertaken as per established and specified procedure or as per Discipline and Appeal Rule under the 1983 Act and 1987 Rules. Rule 31 of the 2008 Rules has laid down the procedure to be followed in a domestic enquiry. The Co-operative Bank is not a State under Article 12 of the Constitution as it receives no financial assistance from the State, nor is it state controlled. In the absence of the aforesaid and in view of Rule 31 of the 2008 Service Rules, the procedure set out therein was to be followed. Therefore all that has to be considered is if any statutory breach has occurred that can aid the petitioner to maintain this application. For the statutory breach to have occurred the service conditions of the petitioner needs to be guided by the Conditions of Service under Rule 108 of the 1987 Rules. This is not so in the instant case, therefore the other Rule that can come to the aid of the petitioner is Rule 48(f) of the 1987 Rules. The proviso to Rule 48(f) specifically engrafts the principles of natural justice and although there is no specific mention of Rule 48(f) but the ingredients of Rule 48(f) of the 1987 Rules has been pleaded. In W.P. 9479 of 2010 the charge sheet dated 23.11.2009 (wrongly mentioned as 2010) was under challenge. Therefore the said issue cannot be considered in this writ petition. In this writ petition the Enquiry Report has been challenged on the ground that a new charge viz. “need to verify” was introduced. The said issue was considered by the Enquiry Officer in the light of the petitioner's reply to the charge sheet wherein the said issue was raised and the Enquiry Officer was bound to deal with it. In the instant case the disciplinary authority is the Board of Directors which has issued the charge sheet through the Chief Executive Officer on the petitioner. The petitioner's reply to the enquiry report was considered at meeting held on 7.12.2010 and an order passed on 8.12.2010 by the disciplinary authority which is a reasoned order may be not put down in the way the petitioner would have wanted but reasons have been assigned and on basis thereof the disciplinary authority (Board of Directors) in this case proposed to pass an order of dismissal. The said proposed penalty was also communicated to the petitioner and a reply in respect thereof was also given and after considering the same the order of dismissal was passed. The disciplinary authority viz. the Board of Directors concurred with the reasonings of the Enquiry Officer and its reasonings by which it proposed to impose the penalty and therefore no further reasons was required to be given by it. It is only in the event it reached a different conclusion reasons for differing would be necessary. As there has been compliance of Rule 48(f) of the 1987 Rules, no breach of statute can be alleged and this application warrants no order. Another reason for not passing an order is that no appeal has been filed by the petitioner before the appellate authority although the 2008 Rules provides that an appeal shall lie to the Board of Directors. In the instant case as the order of dismissal was passed by the Board of Directors and Rule 29(B)(1) of the 2008 Rules has specifically stated as follows: "29(B)(1) xxxxxxxxxxxxxxxxxxxxxxxx (i) xxxxxxxxxxxxxxxxxxxxxxx (ii) xxxxxxxxxxxxxxxxxxxxxxx (iii) xxxxxxxxxxxxxxxxxxxxxxx (iv) xxxxxxxxxxxxxxxxxxxxxxxx (v) xxxxxxxxxxxxxxxxxxxxxxxx (vi) Departmental Enquiry as per established/specified procedure or as per Discipline and Appeal Rule as provided in West Bengal Cooperative Societies Rules and Acts." There being no Appellate Authority prescribed in case the dismissal is by the Board of Directors the conditions of service set out in the Appendix to Chapter VI under Rule 108 of the 1987 Rules would become applicable. Rule 15 of the said Appendix specifically provides that the appeal from the order of the Board of Directors would lie to the general body of members in the general meeting. As the petitioner was entitled to file an appeal, therefore deprivation cannot arise. There is no dispute with the proposition of law laid down in the cases cited but as there has been no breach of statute or violation of the principles of natural justice cannot be applied to the facts of the instant case. The petitioner has relied on (2003) 2 SCC 107 for determining the scope of judicial review and although alternative remedy may be no bar to maintain a writ application, provided the contingencies mentioned in the judgment mentioned above exist viz.:- (i) Violation of fundamental rights and enforcement thereof. (ii) Violation of the principles of natural justice. The petitioner has relied on (2003) 2 SCC 107 for determining the scope of judicial review and although alternative remedy may be no bar to maintain a writ application, provided the contingencies mentioned in the judgment mentioned above exist viz.:- (i) Violation of fundamental rights and enforcement thereof. (ii) Violation of the principles of natural justice. (iii) Orders or proceedings are without jurisdiction or the vires of the Act is under challenge. None of these contingencies exist in the instant case and therefore this writ application in view of the aforesaid is dismissed.