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2015 DIGILAW 267 (CAL)

Kumar Chattopadhyay v. State of West Bengal

2015-03-19

DEBANGSU BASAK

body2015
Judgment :- Debangsu Basak, J. A dismissed employee of the second respondent has challenged the order of his dismissal from service in this writ petition. Learned Senior Advocate for the respondents questions the maintainability of the writ petition. He contends that, the second writ petitioner is not an authority within the meaning of Article 12 of the Constitution of India and, therefore, Article 226 is not available to impugn any action of the second respondent. In support of such contention he relies upon 2009 Volume 1 Calcutta High Court Notes page 573 (Bhabani Adhikari v. West Bengal State Cooperative Bank Limited & Ors.), 2006 Volume 11 Supreme Court Cases page 634 (S.S. Rana v. Registrar, Co-operative Societies & Anr.), 2005 Volume 6 Supreme Court Cases page 289 (Supriyo Basu & Ors. v. W.B. Housing Board & Ors.) and 2013 Volume 16 Supreme Court Cases page 82 (Thalappalam Service Cooperative Bank Limited & Ors. v. State of Kerala & Ors.). He contends that, in terms of Bhabani Adhikari (supra) the writ petitioner has to assert a breach of a statutory provision by the second respondent to pass the threshold of maintainability of the writ petitioner. The merits may be considered later and only if the writ petitioner passes such threshold. Bhabani Adhikari (supra) concerns an employee of the respondent. Such employee was dismissed from service by the second respondent. Such employee had filed a petition under Section 226 of the Constitution of India challenging the order of dismissal. A petition was filed questioning the maintainability of the writ petition. It has been held that, notwithstanding a person not answering the description of a “State” or “other authority” within the meaning of Article 12 of the Constitution of India by virtue of its composition or by dint of the nature of duties and functions that it discharges, a writ may be issued against it, if a violation of a statutory rule in relation to the employment is made the basis of a petition under Article 226 of the Constitution of India. It has also been held that, if there is a breach of a statutory duty which is made the foundation of a writ petition against an employer which is not otherwise amenable to the writ jurisdiction then the writ petition would be entertained and it has to be assessed on merits as to whether there is no breach or not. It has also been held that, if there is a breach of a statutory duty which is made the foundation of a writ petition against an employer which is not otherwise amenable to the writ jurisdiction then the writ petition would be entertained and it has to be assessed on merits as to whether there is no breach or not. The distinction between an action not being maintainable and an action which is liable to be dismissed has been stated. It states that, when an action is not maintainable, the Court cannot assume jurisdiction and that when an action is liable to be dismissed the Court has to adjudicate on merits, whatever may be the degree, to arrive at a conclusion. S.S. Rana (supra) has held that in case of a non-statutory society the control of the State required thereover would mean that such non-statutory society satisfies the tests laid down in Ajay Hasia case, (1981) 1 SCC 722 . Supriyo Basu & Ors. (supra) has held that a writ petition would be maintainable against any co-operative housing society only if it is established that a mandatory statutory provision of a statute has been violated. Thalappalam Service Co-operative Bank Limited & Ors. (supra) states which body or organization though not part of the “State” or “instrumentality of the State” may still satisfy the definition of “Public authority” within the meaning of Section 2(h) of the Right to Information Act, 2005. Bhabani Adhikari (supra) relates to the second respondent. Supriyo Basu & Ors. (supra) as well as S.S. Rana (supra) has been considered in Bhabani Adhikari (supra). After considering these two authorities Bhabani Adhikari (supra) found the writ petition to be maintainable on the factual matrix obtaining there. The writ petitioner contends that, the entire disciplinary proceedings are without jurisdiction and that the order of dismissal is a nullity. The writ petitioner points out that the Board of Directors of the second respondent without applying any mind to the matters on record and without assigning any reason adopted the report filed by the Enquiry Officer and has held that the writ petitioner is guilty and dismissed the writ petitioner from its service. Since the Board of Directors has failed to give any reasons, the writ petitioner complains that Article 14 of the Constitution of India has been violated. Since the Board of Directors has failed to give any reasons, the writ petitioner complains that Article 14 of the Constitution of India has been violated. The writ petitioner also complains that, the disciplinary proceedings against him were drawn up in violation of Rule/ paragraph 15(1) of the Rules of 1987. The writ petitioner also contends that, the disciplinary proceedings as well as the appellate proceedings which were required to be done under the bipartite settlement in supersession of the statutory rules, the entire proceedings are therefore without jurisdiction, a nullity and should be quashed. In such circumstances, I find the writ petitioner has complained of violations of his fundamental rights as well as has pointed out breaches of statute on the part of the respondents. The writ petition is, therefore, maintainable in view of the ratio laid down in Bhabani Adhikari (supra). Learned Senior Advocate for the respondents contends that, judicial review of an administrative decision is available only when the petitioner demonstrates that a prejudice has been caused to him. In support of such contention he relies upon 2003 Volume 3 Supreme Court Cases page 605 (Regional Manager, U.P. SRTC, Etawah v. Hoti Lal & Anr.), 2012 Volume 2 Supreme Court Cases page 641 (Burdwan Central Co-operative Bank Limited & Anr. v. Asim Chatterjee & Ors.), 2013 Volume 2 Supreme Court Cases page 740 (State Bank of India & Ors. v. Narendra Kumar Pandey) and 2013 Volume 6 Supreme Court Cases page 602 (S.R. Tewari v. Union of India & Anr.). In Hoti Lal & Anr. (supra) the Supreme Court has held that, a Court or a Tribunal while dealing with the quantum of punishment has to record the reasons as to why it found the punishment awarded was not commensurate with the proved charges. The scope of interference is very limited and is restricted to exceptional cases. In the fact of that case, the Supreme Court found that, the impugned order of the High Court gave no reasons as to why the punishment imposed was considered disproportionate. In Burdwan Central Co-operative Bank Limited & Anr. (supra) the question considered by the Supreme Court was whether an employer could take disciplinary action against an employee in regard to acts purportedly done by him in his previous employment in an affiliated society. In Burdwan Central Co-operative Bank Limited & Anr. (supra) the question considered by the Supreme Court was whether an employer could take disciplinary action against an employee in regard to acts purportedly done by him in his previous employment in an affiliated society. One of the contentions raised was that, the dismissed employee was not prejudiced in any way on account of the non-supply of the report of the Enquiry Officer or the absence of a second show-cause notice. It was held that a Court had to examine whether any prejudice was caused to the employee or not for non-furnishing of a copy of the enquiry report and the same had to be considered in facts of each case. In S.R. Tewari (supra) the scope of judicial review with regard to proportionality of punishment came up for consideration. It has been held that the scope of judicial review of punishment awarded by the disciplinary authority is extremely limited. A Court could interfere with the quantum of punishment only where the punishment is awarded shockingly or strikingly disproportionate to the gravity of misconduct or is arbitrary or violative of Article 14 of the Constitution of India. It has been held that, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible. It cautions that Court should not interfere with the quantum of punishment merely on compassionate ground. The petitioner had joined the second respondent as a Cash cum General Assistant on January 1, 1980. He was working as the Cash Cum General Assistant of the Beliaghata Branch of the second respondent in October 2001. The disciplinary proceedings initiated against the writ petitioner relates to incidents happening on October 16, 2001 and October 17, 2001 at the Beliaghata Branch of the second respondent. On October 16, 2001 after closing of the bank according to the cash scroll the balance was Rs.7,80,086.42p. Such amount was checked and verified by the branch manager. Both the branch manager and the writ petitioner had put their respective signatures on the cash scroll. On October 17, 2001, it is alleged against the writ petitioner that, the branch manager on opening of the day duly checked the cash and had alleged that Rs.5,000/- was short by counting the Rs.500/- notes bundle. Both the branch manager and the writ petitioner had put their respective signatures on the cash scroll. On October 17, 2001, it is alleged against the writ petitioner that, the branch manager on opening of the day duly checked the cash and had alleged that Rs.5,000/- was short by counting the Rs.500/- notes bundle. On October 17, 2001 a special checking team came from the head office and checked the Cash Book of October 17, 2001 and did not find any shortage. An enquiry was initiated against the writ petitioner by a notice dated November 22, 2001. The writ petitioner was suspended on the same date. There were 2 charges against the writ petitioner. The first article of charge relates to the shortage in the amount on October 16, 2001 and October 17, 2001 while the second article of charge relates to a loan allegedly taken by the writ petitioner from one of the account holders. The writ petitioner had participated in the proceedings before the enquiry officer. The writ petitioner by a letter dated December 6, 2001 gave a reply to the notice dated November 22, 2001. The enquiry officer had submitted his report dated July 3, 2002. The enquiry officer had found the first charge to be substantiated. The second charge was found not to be established. The enquiry report dated July 3, 2002 was considered by the board of directors of the second respondent in their meeting held on July 31, 2002. The Board of Directors of the second respondent accepted the enquiry report and had issued a second show cause notice on September 21, 2002. The writ petitioner made a representation thereto dated October 25, 2005. The respondent no. 2 considered the disciplinary proceedings against the writ petitioner in a meeting of the Board of Directors held on October 28, 2004. The Board of Directors of the respondent no. 2 in such meeting had unanimously resolved to impose the proposed punishment of dismissal from the services of the bank without further monetary benefits from the bank for the period the writ petitioner was under suspension. This decision was communicated to the writ petitioner by a letter dated the November 29, 2004. The writ petitioner had filed an appeal to the general body of the respondent no. 2. This decision was communicated to the writ petitioner by a letter dated the November 29, 2004. The writ petitioner had filed an appeal to the general body of the respondent no. 2. The shareholders in the special general meeting held on March 15, 2005 had resolved to confirm the punishment imposed by the Board of Directors for the reasons recorded in the resolution dated October 28, 2004. The respondent no. 2 is required to give reasons for imposing the punishment as done. The Board of Directors of the respondent no. 2 has imposed the punishment after considering the reply to the second show cause notice. Whether or not the Board of Directors of the respondent no. 2 has given any reasons for imposing the punishment as done is one of the questions raised during the hearing of the writ petition. The respondent authorities have produced the records relating to the disciplinary proceedings from the stage of the agenda notes to the Board of Directors of the respondent no. 2 before me. The agenda along with the notes for the meeting of the Board of Directors of the respondent no. 2 held on October 28, 2004 along with the extract of the proceedings of the Board of Directors of the respondent no. 2 held on October 28, 2004 have been produced for consideration. The appeal made by the writ petitioner to the general body of the respondent no. 2 which was put up before the special general meeting of the shareholders of the respondent no. 2 held on March 15, 2005 along with the notice of such special general meeting and the proceedings of such special general meeting have also been produced. The Board of Directors of the respondent no. 2 in its meeting dated October 28, 2004 has considered the reply to the second show cause notice dated October 25, 2004. The relevant paragraphs of the extract from the proceedings of the Board of Directors of the respondent no. 2 held on October 28, 2004 are as follows: – “The delinquent has given his reply to the Second Show Cause Notice on 25.10.2004 which is under consideration in the context of the Learned Enquiry Officer’s report. It is found that the pleas and contentions ought to be raised by the delinquent against the enquiry report and the finding of his guilt of misconduct are not in any way convincing. It is found that the pleas and contentions ought to be raised by the delinquent against the enquiry report and the finding of his guilt of misconduct are not in any way convincing. Accordingly, the only reasonable conclusion is that the Learned Enquiry Officer’s report finding the delinquent guilty of the charge No.1 is fair, proper and justified. The charge established against the delinquent, though involves a very small sum of money, but the manner, mode and motive of committing such financial manipulation in connection with the Bank’s business on the part of an employee entrusted with the job appears to be unpardonable as the Management has totally lost faith and confidence in his character and integrity. It also appears that the delinquent has not prayed for mercy, or for a lesser punishment upon admission of his guild, rather he still vainly asserts himself to be not guilty.” The Board of Directors of the respondent no. 2 in its meeting held on October 28, 2004 has found that the pleas and contentions sought to be raised by the writ petitioner against the enquiry report and its findings not to be convincing. However, the Board of Directors of the respondent no. 2 did not give any reasons as to why the pleas and contentions raised by the writ petitioner against the enquiry report and its findings have been found to be not convincing. In my view, reading the extract of the proceedings of the Board of Directors dated October 28, 2004 the only conclusion that can be arrived at, is that, the respondent no. 2 in its Board of Directors meeting held on October 28, 2004 did not give any reasons as to why the pleas and contentions raised by the writ petitioner were found not to be convincing. One is not in a position to know whether or not the Board of Directors has applied its mind as to the pleas and contentions raised by the petitioner as no reasons are disclosed. Rule of Law requires a quasi-judicial authority to disclose reasons for the action taken. The decision of the Board of Directors of the respondent no. 2 dated October 28, 2004 in this regard therefore stands vitiated due to lack of reasons. The shareholders of the respondent no. Rule of Law requires a quasi-judicial authority to disclose reasons for the action taken. The decision of the Board of Directors of the respondent no. 2 dated October 28, 2004 in this regard therefore stands vitiated due to lack of reasons. The shareholders of the respondent no. 2 have proceeded to reject the appeal of the writ petitioner on the ground that just and sufficient cause has not been shown by the writ petition. The grounds of the appeal were not considered and no reasons other than stating that the reasons given by the Board of Directors meeting dated October 28, 2004 were acceptable to them, have been given by the shareholders of the respondent no. 2 in the special general meeting held on March 15, 2005. The shareholders of the respondent no. 2 have proceeded to unanimously resolve to confirm the punishment imposed by the Board of Directors for the reasons recorded in the resolution dated October 28, 2004. I have already found that the resolution of the Board of Directors dated October 28, 2004 is without any reason. Consequently the resolution adopted in the special general meeting of the respondent no. 2 held on March 15, 2005 is also vitiated by lack of reason. Learned Counsel for the respondent authorities submits that, the reasons for the Board of Directors imposing the punishment as sought to be done could be found out from the enquiry report. In my view, the Board of Directors have to give reasons as to why they accepted the enquiry report and did not accept the pleas and contentions of the writ petitioner. The Board of Directors did not do so. The writ petitioner is entitled to know the reasons for the rejection of his pleas and contentions more particularly since he has participated in the disciplinary proceedings. Learned Counsel for the respondent authorities submitted that failure to give reasons is a denial of justice as held in Hoti Lal & Anr. (supra) was in the context of the Division Bench failing to give reasons for interfering in the quantum of the punishment imposed in the facts of that case. With due respect, an order of dismissal passed an administrative authority is also required to be informed with reasons. Failure to give reasons in administrative orders also amounts to denial of Justice. (supra) was in the context of the Division Bench failing to give reasons for interfering in the quantum of the punishment imposed in the facts of that case. With due respect, an order of dismissal passed an administrative authority is also required to be informed with reasons. Failure to give reasons in administrative orders also amounts to denial of Justice. In the facts of this case therefore, the orders of the Board of Directors as well as the shareholders of the respondent no. 2 are set aside. The respondent authorities are directed to place the reply of the writ petitioner to the second show cause notice before the Board of Directors of the respondent no. 2 in accordance with law. Such reply to the show cause notice should be considered by the Board of Directors of the respondent no. 2 in accordance with law. The parties are at liberty to take steps in accordance with law with regard to the disciplinary proceedings against the writ petitioner. All other points raised by the parties are kept open. With the aforesaid directions, W.P. No. 950 of 2008 is disposed of. No order as to costs.