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2017 DIGILAW 249 (ORI)

Sanatan Barik v. State of Odisha

2017-03-08

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This writ petition arises out of an order dated 16.6.2012 passed by the Registrar, Cooperative Societies, Orissa, Bhubaneswar on disposal of a representation dated 28.3.2012 alongwith an additional representation dated 8.5.2012of the petitioner. In this writ petition, the petitioner has prayed for a direction to the opposite parties to reinstate him with back wages and service benefits within a stipulated period of time. 2. Short background involved in the case is that while the petitioner was working as an Accountant under the Keonjhar Central Cooperative Bank in its Anandaur branch, certain charges were framed against him as appearing at Annexure-2 to this petition. The petitioner submitted his explanation denying the charges. Bank authorities being not satisfied with the explanation submitted by the petitioner, appointed an Enquiry Officer. Upon completion of the inquiry, the Enquiry Officer submitted a report exonerating the petitioner from charges after observing that there is no involvement of the petitioner in the alleged incidents. It is submitted that in spite of the above developments, the petitioner was placed under suspension vide Office order dated 14.7.2008. After few months on 11.11.2008, the management in disagreement with the report in the inquiry issued a second show cause notice as against the proposed decision of the management to dismiss the employees including the petitioner from services as a measure of major punishment. Receiving the notice to show cause as to why the proposed punishment shall not be inflicted as against the petitioner for the management’s disagreement with the observations in the inquiry report, the petitioner submitted his explanation challenging the proposed punishment. It appears for not being satisfied with the show cause submitted by the petitioner, the petitioner was also given a chance of personal hearing. It is alleged that though a notice indicating personal hearing of the petitioner was issued but in fact there was no personal hearing taken place and finally, an order imposing major punishment of dismissal from service was issued to the petitioner on 18.6.2009 as at Annexure-7 to this petition. 3. Challenging the order of dismissal under Annexure-7 the petitioner preferred an appeal to the Managing Committee following the provisions contained in Staff Service Regulation of the Bank. 3. Challenging the order of dismissal under Annexure-7 the petitioner preferred an appeal to the Managing Committee following the provisions contained in Staff Service Regulation of the Bank. The appellate authority was in no mood of disposing the appeal, which constrained the petitioner to move a petition before the High Court vide W.P. (C) No.11908 of 2010 and the writ petition was disposed of by this Court by its order dated 2.8.2010 directing therein the appellate authority to dispose of the appeal on its own merit as expeditiously as possible preferably within two months from the date of receipt of certified copy of the order. It is further submitted that the petitioner in the meantime has been communicated with an order dated 1.10.2010 which indicated disposal of the appeal involving the petitioner. In the meantime, there was a surcharge proceeding against the petitioner. The order being passed against the petitioner in the surcharge proceeding, the petitioner preferred a reference application under Section 112-A of the Cooperative Societies Act. The Tribunal vide its order dated 6.3.2009 decided the reference application in terms of the judgment passed in J.A. No.35/2007. Assailing the impugned order directing that unless the amount indicated therein is deposited, the appeal shall not be heard, the petitioner preferred a writ petition before this Court. Considering the gravity involved in the matter, this Court directed the Managing Committee to appear in person before this Court and considering the submission of the Managing Committee appeared in person filing an affidavit annexing therein a review order of the Management in connection with the appeal in exercise of power under Rule 39(a)(ii) taking a decision therein for reinstatement of the petitioner. 4. Sri Rath, learned Counsel for the petitioner submitted that for the information disclosed in the affidavit at the instance of the Managing Committee and the submission made before this Court in the earlier writ petition, there remain no doubt that dismissal order passed involving the petitioner has been reversed by the final appellate order. 4. Sri Rath, learned Counsel for the petitioner submitted that for the information disclosed in the affidavit at the instance of the Managing Committee and the submission made before this Court in the earlier writ petition, there remain no doubt that dismissal order passed involving the petitioner has been reversed by the final appellate order. Referring to the impugned order vide Annexure-1, learned counsel for the petitioner submitted that on their own affidavit, the order of dismissal has already been reviewed, which order not being challenged by any concerned, the Registrar, Cooperative Societies is not correct in rejecting the representation of the petitioner on the premises of no challenge to the order of dismissal and therefore, there is no question of reappointment of the petitioner. 5. Learned counsel for the opposite parties-Bank and Management therein fairly contended that when the Managing Committee has no objection in taking back the petitioner into service for the order contained in the Review proceeding involving the appeal at the instance of the petitioner, the Registrar has no authority to take a contrary view. Learned counsel for the opposite party Nos.3, 4 & 5 also fairly submitted that there is no challenge to the order involving the review proceeding reversing the order of dismissal by any concerned. 6. Learned State Counsel defending the impugned order taking resort to the observation made in Annexure-1 submitted that there is no infirmity in the impugned order leaving any scope for interfering in the same by this Court. 7. Considering the rival contentions of the parties, this Court finds, while the petitioner was continuing at Anandapur Branch faced with charges indicated in Annexure-2. Petitioner submitted his explanation denying the charges. Being not satisfied with the response, an enquiry was set up by the Management. The Enquiry Officer through a full-fledged inquiry submitted a report to the Disciplinary Authority with a clear observation that the petitioner is not responsible for permitting the peon to work as cashier, consequently observed that there is failure of charge No.1. The Enquiry Authority also observed that there is no monetary involvement found against the petitioner and there may be a case of partial negligence in duty by Sri Barik by not obtaining passbook from depositors. The Enquiry Authority also observed that there is no monetary involvement found against the petitioner and there may be a case of partial negligence in duty by Sri Barik by not obtaining passbook from depositors. From the above, this Court also observed that being dissatisfied with the observation of the finding in the inquiry report, the Management issued a show cause notice to the petitioner as to why the proposed punishment of termination on disagreement with the findings of the Enquiry Officer shall not be imposed against him. The petitioner’s response was found to be not satisfying his case and a consequential order of dismissal was passed against the petitioner. It also appears, being aggrieved by the said order, the petitioner filed an appeal before the Managing Committee following the provisions contained in the Central Cooperative Bank Staff Rules, 1984. The Managing Committee however, took a view that unless the petitioner makes the deposit of the amount involved, his appeal shall not be considered. As no action was taken in the appeal and the Management Committee insisted of deposit of the amount prior to hearing of the appeal, the petitioner was constrained to file the Writ Petition bearing No.11908 of 2010. This writ petition was disposed of with the following order : “Order No.02 dated 02.08.2010: Heard Mr. Rath, learned counsel for the petitioner and Mr. Senapati, learned Addl. Government Advocate. In this writ application, the petitioner has prayed for a direction to the Opp. party No.2 for early disposal of appeal dated 22.07.2009, as at Annexure-7 within a stipulated time. Considering the limited grievances of the petitioner, this Court directs the appellate authority-Opp. Party No.2 to dispose of the appeal, as at Annexure-7 on its own merit after verifying disciplinary proceeding records, as expeditiously as possible, preferably within a period of two months from the date of receipt of certified copy of this order. The writ application is disposed of accordingly.” 8. On perusal of the documents filed herein, this Court finds, the appeal at the instance of the petitioner was taken up for consideration of the Managing Committee and vide item No.11, the Managing Committee passed the following order : 11. To consider appeal petition of staff dismissed from services. The writ application is disposed of accordingly.” 8. On perusal of the documents filed herein, this Court finds, the appeal at the instance of the petitioner was taken up for consideration of the Managing Committee and vide item No.11, the Managing Committee passed the following order : 11. To consider appeal petition of staff dismissed from services. The appeal petition of the following staff who have been dismissed from services of the Bank in pursuance of decision of the Appointment Committee dated 15.03.2009 and as per order No.1164 (5) dated 18.06.2009 were pursued. 1. Sri Duryodhan Prusty 2. Sri Sanatan Barik 3. Sri Basanta Kumar Pati 4. Sri Bidhan Kumar Dash 5. Sri Susanta Kumar Rana The appointment committee was satisfied that these employees acting in a combination in a concern manner and/ or jointly serverally misappropriated a total sum of Rs.12,30,752/- of Anandpur Branch resorting to fraud and making false entries in the books and accounts. After a threadbare discussion, it is resolved that, unless the above employees make good of the misappropriated amount of 12,30,752/- along with interest thereon there shall be no consider on their appeal petition. Further, out of the above five dismissed employees, one has gone to the Hon’ble cooperative Tribunal challenging the decision. So the matter is under subjudice. Some of the member intends to study the special Audit Report of Anandpur Branch relating to the misappropriated of the amount. It is resolved that, the member can study the audit report in the office during the office hours. 9. Further perusal of the records and the documents appended to the writ petition as well as to the counter affidavit, it appears that vide resolution No.11 dated 24.5.2011, the Managing Committee in consideration of the appeal of the petitioner and others allowed the appeal at the instance of the petitioner resolving to reinstate the persons including the petitioner. Extract of the resolution of the Managing Committee held on 24.5.2011 reads as follows : (a) As per the resolution of the managing committee dt.14.10.2009 they have to deposit the entire amount as shown against their name in the special audit report of Anandapur branch along with interest @ 12% per annum. (b) Instead of joint liability they will deposit their amount in their individual liability along with the interest from the date of commitment of the fraud. (b) Instead of joint liability they will deposit their amount in their individual liability along with the interest from the date of commitment of the fraud. They will also be liable for the further detection of fraud if any. They will have to furnish a undertaking on that score. (c) They will be punished as per the gravity of the fraud committed by them. (d) Their period of dismissal will be treated as such. (e) No past service seniority will be counted. (f) They will deposit their individual liable amount within 45 days of communication of letter. No adjustment method for collection of liable amount from the receivable amount if any will be followed. (g) They will not be posted for handling of cash independently. (h) The Secretary is authorized to implement the decision in accordance with the rules and procedures as per the law to avoid any type of future complicacy. 10. From reading of the above, it appears that the Managing Committee on consideration of the appeal at the instance of the petitioner and others has resolved the dispute reinstating the petitioner but with certain conditions. Following the aforesaid resolution for reinstating the petitioner, the Secretary of the Bank wrote a letter to the Registrar seeking his advice in the matter of direction of the Managing Committee dated 24.5.2011 to reinstate the dismissed employees including that of the petitioner. This Court finds surprise that when the Managing Committee has already resolved to reinstate the petitioner and others authorizing the Secretary to implement the decision, there was no scope for the Secretary to seek advice of the Registrar. From all the above, it appears that the Managing Committee on consideration of the appeal has already taken a decision to reinstate the petitioner along with several others but however subject to certain conditions indicated in the Resolution dated 24.5.2011. For not working out the order of the appellate authority, as indicated hereinabove, the petitioner was constrained to move another writ petition bearing W.P. (C) No.19091 of 2010. Considering the submissions of the rival parties, on perusal of the records including the counter affidavit of the opposite parties filed in the Writ Petition bearing W.P. (C) No.19091 of 2010, this Court finds, there is a clear statement that the Managing Committee on review of the order has decided to reinstate the petitioner but however, with certain conditions. Considering the submissions of the rival parties, on perusal of the records including the counter affidavit of the opposite parties filed in the Writ Petition bearing W.P. (C) No.19091 of 2010, this Court finds, there is a clear statement that the Managing Committee on review of the order has decided to reinstate the petitioner but however, with certain conditions. Taking into consideration the above, this Court though feels, there remains nothing to be decided further but since the order of reinstatement was not given effect to dispose the writ petition on 21.3.2012 directing the petitioner to file a detailed representation before the Registrar for suitable direction in the matter and Annexure1 is the outcome of such representation. 11. From the entire narration made hereinabove, this Court finds, there is already an order reinstating the petitioner by the competent authority which again has not been challenged by any concerned. Even though the writ petition No.19091 of 2010 was disposed of with a direction to the petitioner to file a detailed representation but the Registrar being the higher authority his role appears to be only confined to take into account the decision of the Managing Committee and issuing necessary direction to the Secretary or the Managing Committee whoever is concerned to implement their own decision vide resolution dated 24.5.2011. On perusal of the decision vide Annexure-1, it appears that the Registrar sitting over the order of the Managing Committee as revisional authority took a decision holding that for the petitioner’s involvement in serious allegations, there was no question of reinstatement, which power he did not have at the relevant point of time as it is not a case challenging the order of reinstatement but merely a request for implementation of the order of reinstatement. This Court observes that in absence of any dispute involving as above, there was no occasion for the Registrar to consider the validity of the orders of the Managing Committee. There is no such provision in the Statute authorizing the Registrar to get into such aspect suo motu. Since the order of the Managing Committee remained final, the direction contained therein was required to be complied with only. Under the circumstances, this Court finds, the Registrar exceeded its jurisdiction while considering the representation of the petitioner seeking a direction from the Managing Committee/ Secretary for implementation of their order. Since the order of the Managing Committee remained final, the direction contained therein was required to be complied with only. Under the circumstances, this Court finds, the Registrar exceeded its jurisdiction while considering the representation of the petitioner seeking a direction from the Managing Committee/ Secretary for implementation of their order. Since the petitioner is suffering for such a long period for no reason attributed to him and for the resolution of the Managing Committee dated 24.5.2011, this Court finds, no purpose will be served in remitting the matter again back to the Registrar but to dispose of this matter by issuing suitable direction. Therefore, while interfering in the order of the Registrar, this Court sets aside the same and allows the Writ Petition. Consequently, this Court also directs the Secretary of the Bank-opposite party No.5 to work out the direction of the Managing Committee reinstating the petitioner vide their resolution dated 24.5.2011 forthwith. This Court makes it clear that reinstatement of the petitioner will however be subject to the conditions contained in the Resolution dated 24.5.2011. There shall be release of the back wages of the petitioner up to the resolution dated 24.5.2011 in terms of the direction contained in the said resolution and the period beyond 24.5.2011 till reinstatement. Since the petitioner has not worked at all and considering the conditions of the State Co-operative Banks in the State, he will be entitled to get 50% of the back wages. 12. The writ petition succeeds to the extent directed hereinabove. However, there is no order as to cost.