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2014 DIGILAW 444 (ORI)

Satyanarayan Panda v. Orissa State Co-operate Bank Ltd

2014-07-25

B.K.NAYAK

body2014
Judgment B.K.NAYAK, J. In this writ petition the petitioner challenges the initiation of the disciplinary proceeding against him and prays for quashing the charges framed against him as per Annexure-6 on the ground that the proceeding initiated by the Managing Director of the Orissa State Co-operative Bank Ltd is without jurisdiction inasmuch as the Managing Director has no authority under law to initiate such proceeding. 2. The petitioner is an employee of Orissa State Co-operative Bank Ltd (in short ‘OSCB’) in the rank of Deputy General Manager. During April, 1999, he was posted as Secretary of Banki Central Cooperative Bank Ltd on deputation. Thereafter he was transferred to District Central Co-operative Banks at Balasore, Sambalpur and Cuttack. From the NABARD Inspection Report of Cuttack Central Co-operative Bank Ltd with reference to the financial position as on 31.03.2013 and Special Audit Report of the Cuttack Central Co-operative Bank Ltd for the same period during which the petitioner was working as Chief Executive of the Cuttack Central Co-operative Bank Ltd, it came to light that the petitioner had committed gross irregularities in violation of the Rules, Procedures and directives issued by the Reserve Bank of India/NABARD/OSCB from time to time thereby putting the Bank to huge loss and exposing the organization into severe Operational Risk. Therefore, a proceeding was initiated against him and charge-sheet dated 30.01.2014 as at Annexure-6 was framed and served upon him for major misconduct under Rule 33 (a) (i), (ii), (vii), (xvi) and (xix) of the OSCB and was directed to submit his explanation. 3. It is submitted at the bar that without submitting his show cause/explanation to the charges framed against him, the petitioner filed a representation questioning the authority and jurisdiction of the Managing Director of the OSCB and did not participate in the proceeding. Understandably, after completion of enquiry in the proceeding the matter is now pending at the stage of second show cause notice. At this stage, the present writ petition has been filed challenging the very initiation of the proceeding on the ground that the Managing Director has no authority and jurisdiction to initiate the proceeding and issue charge-sheet. 4. Understandably, after completion of enquiry in the proceeding the matter is now pending at the stage of second show cause notice. At this stage, the present writ petition has been filed challenging the very initiation of the proceeding on the ground that the Managing Director has no authority and jurisdiction to initiate the proceeding and issue charge-sheet. 4. The OSCB-opposite party no.1 as well as the Cuttack Central Co-operative Bank Ltd-opposite party no.4 have filed separate counter affidavits stating inter alia that the Managing Director of the OSCB under law has the jurisdiction and authority to initiate the proceeding against the petitioner. Preliminary objection has also been raised by the opposite parties for entertaining the writ application while the disciplinary proceeding is still pending against the petitioner, on the ground that the petitioner has statutory remedy of approaching the Co-operative Tribunal under Section 67-B of the Orissa Co-operative Societies Act,1962. It is submitted that since a statutory Tribunal has been created, which is manned by an Officer of the Orissa Superior Judicial Service (District Judge Rank), who is competent to decide not only the merits of a disciplinary action, but also all questions including the question of jurisdiction or competency of the authority initiating the disciplinary proceeding and issuing charge-sheet, this Court should not entertain the writ petition. In reply to the preliminary objection, the learned Senior Counsel appearing for the petitioner submits that even where alterative remedy is available, the High Court is competent to entertain the writ petition if the action or the order impugned is beyond the jurisdiction and competence of the authority concerned. In support of their respective contentions both sides have, apart from referring to various provisions of the Orissa Co-operative Societies Act, the OSCB Staff Service Rules,1980 and the Bye-Laws of OSCB, relied upon some decisions of the Hon’ble apex Court as well as of this Court. 5. In the decision reported in AIR 1999 SC 22 : Whirlpool Corporation v. Registrar of Trade Marks, Marks, Mumbai & others, where notice was issued by the Registrar of the Trade Marks under Section 56(4) of the Trade and Merchandise Marks Act,1958 for proposed cancellation of renewal of the Trade Mark Certificate, and a writ petition was directly filed before the High Court challenging such notice, the Hon’ble apex Court held as follows : “15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the writ petition has been field for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.” For holding as above, the apex Court referred to the decision in the case of K.S. Rashid & Son v. The Income Tax Investigation Commissioner: (1954) 25 ITR 167 (SC), where it was held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article,226 unless there are good grounds therefor. The apex Court also relied upon the previous Constitutional Bench decision in the case of A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr.: 1983 ECR 215 ID(SC) wherein it was observed as follows : “ … … The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.” 6. Reliance has been placed on behalf of the opposite parties in the decision reported in AIR 2003 (SC) 3032 : T.K. Rangarajan v. Govt. of Tamil Nadu and others, wherein it has been observed as follows: “5. At the outset, it is to be reiterated that under Article 226 of the Constitution, the High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situation having no parallel. It is equally true that extraordinary powers are required to be sparingly used. The facts of the present case reveal that this was most extraordinary case, which called for interference by the High Court, as the State Government had dismissed about two lacs employees for going on strike. 6. ... … It is also established principle that where there is an alterative, effective, efficacious remedy available under the law, the High Court would not exercise its extraordinary jurisdiction under Article 226 and that has been reiterated by holding that the litigants must first approach the Tribunals which act like Courts of first instance in respect of the areas of law for which they have been constituted and therefore, it would not be open to the litigants to directly approach the High Court even where the question of vires of the statutory legislation is challenged. 11. There cannot be any doubt that the aforesaid judgment of larger Bench is binding on this Court and we respectfully agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. 11. There cannot be any doubt that the aforesaid judgment of larger Bench is binding on this Court and we respectfully agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier because of very very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute.” In the aforesaid case alternative remedy was held not to be a bar for entertaining a writ petition by the High Court, as it was a matter of unprecedental and extraordinary situation where for resorting to strike two lakhs government employees were dismissed by the Government of Tamil Nadu by one stroke of pen. 7. Reliance has also been placed in the decision reported in (2012) 11 SCC 565 : Secretary, Ministry of Defence and others v. Prabhash Chandra Mirdha wherein it has been held that the removal and dismissal of a delinquent on misconduct must be by the authority not below the appointing authority. However, it does not mean that disciplinary proceedings may not be initiated against the delinquent by the authority lower than the appointing authority. It is also permissible for an authority, higher than the appointing authority to initiate the proceedings and impose punishment in case he is not the appellate authority so that the delinquent may not lose the right of appeal. In other case, the delinquent has to prove as to what prejudice has been caused to him. Similar view has also been expressed by the Hon’ble apex Court in the decision reported in AIR 1996 SC 1318 : Inspector General of Police and another v. Thavasiappan. 8. The learned Senior Counsel appearing for opposite party no.4 has relied upon a decision rendered by a Division Bench of this Court reported in 2004 (I) OLR 69 : Pravas Chandra Das v. The Urban Cooperative Bank Ltd., Cuttack, wherein the Division Bench refused to interfere with the order of suspension and initiation of a disciplinary proceeding in view of availability of the alterative remedy under Section 67-B of the Orissa Co-operative Societies Act,1962. 9. 9. The principle that can be deduced from the aforesaid decisions is that normally the High Court would not interfere with the charge-sheet or with the disciplinary action if there is an alternative efficacious remedy, unless there is a complete lack of jurisdiction on the part of the authority issuing the charge-sheet and the case involves unprecedented, extraordinary and very exceptional circumstance. In considering the question of interference the High Court has to exercise the discretion keeping in view the facts and circumstances of each individual case. 10. In the instant case, as has been submitted at the bar, the disciplinary proceeding against the petitioner is said to have already reached the stage of second show cause notice, which otherwise means that only final order remains to be passed by the competent authority on receipt of the second show cause notice of the petitioner. Therefore, this Court is not inclined to examine piecemeal the question of jurisdiction of the Managing Director of OSCB to initiate proceeding and issue charge-sheet in view of the availability of the statutory remedy to the petitioner under Section 67-B of the Orissa Co-operative Societies Act,1962. The writ petition is, therefore, dismissed. No costs.