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2017 DIGILAW 993 (CAL)

Dipak Chatterjee v. State of West Bengal

2017-12-18

BISWANATH SOMADDER, MOUSHUMI BHATTACHARYA

body2017
JUDGMENT : BISWANATH SOMADDER, J. 1. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. The appeal arises out of a judgment and order dated 16th June, 2017, rendered by a learned Single Judge in WP 12595 (W) of 2016 (Dipak Chatterjee v. The State of West Bengal & Ors.). 2. The appellant before us was the writ petitioner whose writ petition stood dismissed on the basis of the observations made by the learned Single Judge as contained in the impugned judgment and order. 3. In the facts of the instant case, we notice that the appellant/writ petitioner had been working as an Assistant Accountant of Suri Friend's Union Co-operative Bank Limited (for short, the Bank), situated in the district of Birbhum. His service was terminated by a resolution passed in the general meeting of the Bank held on 21st February, 2016. This became the subject matter of challenge in the writ petition, which gives rise to the impugned judgment and order. 4. The records reveal that when the disciplinary proceedings were drawn up against the appellant/writ petitioner, he was found to be guilty by the Enquiry Officer. Thereafter, the matter was referred to the Board of Directors of the Bank and ultimately, the Chairman of the Board of Directors of the Bank, in terms of a resolution of the Board dated 18th July, 2013, informed the appellant/writ petitioner that his service was terminated with effect from 20th July, 2013, for his misconduct. The appellant/writ petitioner, thereafter, moved a writ petition, being WP 18343 (W) of 2013. During the pendency of the said writ petition, the appellant/writ petitioner filed another writ petition, being WP 15977(W) of 2014, praying inter alia, for a direction upon the appellate authority - being the general body of the Bank - to dispose of the appeal preferred by him within a certain timeframe. Yet another writ petition, being WP 18880(W) of 2014, was filed by the appellant/writ petitioner during the pendency of writ petition [WP 18343(W) of 2013]. In that writ petition, the appellant/writ petitioner assailed the resolution adopted by the Board of Directors of the concerned Bank dated 19th May, 2014. Yet another writ petition, being WP 18880(W) of 2014, was filed by the appellant/writ petitioner during the pendency of writ petition [WP 18343(W) of 2013]. In that writ petition, the appellant/writ petitioner assailed the resolution adopted by the Board of Directors of the concerned Bank dated 19th May, 2014. The learned Single Judge took notice of two of the three writ petitions filed by the appellant/writ petitioner, being WP 18343 (W) of 2013 and WP 18880(W) of 2014 and also referred to and relied upon to a Division Bench judgment of this Court rendered in the case of Bhabani Adhikari v. West Bengal State Co-operative Bank Limited and Ors. reported in 2009 (1) CHN 573 and went on to hold as follows:- "On scrutiny of the documents annexed with the writ application and the resolution No. 19 of the 63rd Annual General Meeting of the Bank it appears that charges were framed against the petitioner in terms of Rule 106, Appendix 2 Chapter v Clause 13 and 14 of WBCS Rules 2011 and in tune with the bylaws of the bank. The petitioner did not challenge the said rules. On the contrary, the petitioner has pleaded guilty in respect of each and every charge before the enquiry officer in black and white. The petitioner has also accepted his liabilities in respect of each and every charge before the enquiry officer and accordingly the petitioner was found guilty to the charges. After considering the entire service record of the petitioner it was resolved that the decision taken by the Board on 19th July, 2013 regarding dismissal of the petitioner is completely in accordance with law and the appeal was dismissed. The petitioner has failed to show that there was specific provision of giving an opportunity of hearing at the time of dismissal of such appeal in the General Body Meeting. At the time of hearing learned Advocate for the petitioner contended that the petitioner has reached the age of superannuation in the meantime. Therefore, it would be a futile exercise if any direction be given to the General Body of the bank to rehear the appeal filed by the petitioner. At the time of hearing learned Advocate for the petitioner contended that the petitioner has reached the age of superannuation in the meantime. Therefore, it would be a futile exercise if any direction be given to the General Body of the bank to rehear the appeal filed by the petitioner. The petitioner could not specifically show before the Court in respect of specific violation of any rules and procedures in the disposal of the appeal filed by the petitioner and in view of the decision Bhabani Adhikari v. West Bengal State Cooperative Bank Limited & Ors. (Supra) of our High Court the writ application becomes not maintainable in law. In the premises set forth above the writ application is dismissed". 5. During the course of hearing of the appeal, the learned advocate representing the appellant/writ petitioner made a specific submission that his client was not granted any opportunity of personal hearing by the appellate authority before the appeal was disposed of. 6. Even a bare perusal of the impugned judgment and order reveals that the learned Single Judge took into consideration the relevant provisions of the Rules which govern statutory appeals. The learned Single Judge has also categorically observed that the appellant/writ petitioner failed to show that there was a specific provision of giving an opportunity of hearing at the time of dismissal of appeal in a General Body Meeting. 7. The relevant Rule which governs the Disciplinary and Appellate Authorities under the West Bengal Co-operative Societies Rules, 2011 has been stated in paragraph 15, Appendix 2, Chapter V, which falls under Rule 106 of the West Bengal Co-operative Societies Rules, 2011. 8. For convenience, the relevant provision, which is contained under subparagraph (2) of paragraph 15, is quoted herein below:- "(2) An employee aggrieved by an order of the disciplinary authority shall have a right to appeal against such order. An appeal shall lie (1) against any order passed by the Chief Executive Officer to the Chairman of the board, (2) against the order passed by the Chairman or the Vice-Chairman of the board, to the board, (3) against the order of the board, to the general body of the society, every appeal shall comply with the following conditions. It shall contain all material statements and arguments relied on and shall be complete in itself. It shall specify the relief desired. It shall be submitted through proper channel. It shall contain all material statements and arguments relied on and shall be complete in itself. It shall specify the relief desired. It shall be submitted through proper channel. The appellate authority shall decide the appeal within three months from the date of submission of the application except where the general body is the authority". 9. We notice from a plain reading of the above quoted provision of law that there is no specific provision for granting any opportunity of personal hearing to a delinquent by the General Body, being the statutory appellate authority. All that is required is that every appeal shall contain all material statements and arguments relied on and shall specify the relief desired and should be submitted through proper channel. 10. Although, the learned advocate appearing on behalf of the appellant/writ petitioner has referred to and relied upon a judgment of the Hon'ble Supreme Court rendered in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, reported in AIR 1994 SC 1074 , the same has no manner of application at all in the\ facts and circumstances of instant case. In fact, this judgment has been referred to and taken into consideration by the Hon'ble Supreme Court in its latter judgment rendered in the case of Oriental Bank of Commerce and Another v. R.K. Uppal, reported in (2011) 8 SCC 695 . The following observations - as contained under paragraphs 18, 19, 20, 21 and 22 are relevant and therefore, quoted hereinbelow:- "18. The Court in Ganesh Santa Ram Sirur case, (2005) 1 SCC 13 , noticed various judgments of this Court including the Constitution Bench judgment in ECIL v. B. Karunakar, (1993) 4 SCC 727 , and also the judgment of the Punjab and Haryana High Court in Ram Niwas Bansal. In para 31 at p.29 of the Report, it was held that the approach and test adopted in B. Karunakar should govern all cases where the complaint is not that there was no hearing, notice and no opportunity but one of not affording the proper hearing that is adequate or a full hearing or violation of a procedural rule or requirement governing that inquiry. We have not been able to discern anything in Ganesh Santa Ram Sirur that lays down that the appellate authority must, in all cases of departmental appeal, afford personal hearing to the delinquent. 19. We have not been able to discern anything in Ganesh Santa Ram Sirur that lays down that the appellate authority must, in all cases of departmental appeal, afford personal hearing to the delinquent. 19. Be it noted that the principal question for consideration in B. Karunakar was whether the report of the inquiry officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to guilt or otherwise of the employee and the punishment, if any, to be awarded to him. While dealing with this question and its diverse facets, the Court exhaustively considered the principles of natural justice in the context of furnishing the report of the inquiry officer/authority to the delinquent employee. B. Karunakar does not deal with the question of necessity of affording a personal hearing to a delinquent by the appellate authority. 20. Mr. K.N. Bhatt, learned Senior Counsel for the appellants cited a Single Bench decision of the Andhra Pradesh High Court in Y. Malleswara Rao v. SBI, 2006 Lab IC 1384 (AP). In that case the delinquent was visited with the penalty of removal from service. The delinquent concerned preferred an appeal before the appellate authority and one of the contentions raised before the High Court was that the appellate authority failed to afford a personal hearing to the delinquent and, therefore, the order of the appellate authority suffered from transgression of an essential principle of natural justice. 21. The Single Judge of the High Court referred to the decisions of this Court in Mahendra Kumar Singhal, (1996) 4 SCC 69 , Jesus Sales Corpn., (1996) 4 SCC 69 and Ganesh Santa Ram Sirur and also the decision of the Full Bench of the Punjab and Haryana High Court in ram Niwas Bansal. The Single Judge also referred to a few decisions of other High Courts and followed the proposition propounded by this Court in Mahendra Kumar Singhal viz. that in the absence of the specific requirement by the relevant rules, there is no right to a personal hearing at the appellate stage and the rules of natural justice do not require that in all cases a right of audience should be provided at the appellate stage. that in the absence of the specific requirement by the relevant rules, there is no right to a personal hearing at the appellate stage and the rules of natural justice do not require that in all cases a right of audience should be provided at the appellate stage. 22. It is now fairly well settled that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth. In the words of Ramaswami, J. (Union of India v. P.K. Roy), AIR 1968 SC 850 the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of the doctrine depends upon the nature of jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case." 11. It may be observed at this stage that the learned Single Judge in its impugned judgment and order has taken into consideration all the issues relevant for the purpose of adjudication of the case of the appellant/writ petitioner including the fact that the appellant/writ petitioner did not challenge the Rules which govern the disciplinary proceedings. The learned Single Judge has also taken note of the fact that the appellant/writ petitioner had pleaded guilty in respect of each and every charge before the Enquiry Officer "in black and white". Further, the learned Single Judge has also taken note of the fact that the appellant/writ petitioner had also accepted his liabilities in respect of each and every charge before the Enquiry Officer and, accordingly, he was found guilty of the charges. After considering the entire service record of the appellant/writ petitioner, it was resolved that the decision taken by the Board on 19th July, 2013, regarding his dismissal was completely in accordance with law and the statutory appeal was dismissed. All these relevant factors having been taken into consideration by the learned Single Judge before proceeding to dismiss the writ petition. 12. In an Intra-Court Mandamus Appeal no interference is usually warranted unless palpable infirmities or perversities are noticed. All these relevant factors having been taken into consideration by the learned Single Judge before proceeding to dismiss the writ petition. 12. In an Intra-Court Mandamus Appeal no interference is usually warranted unless palpable infirmities or perversities are noticed. On a plain reading of the impugned judgment and order, no such palpable infirmities and perversities are noticed which would warrant any interference. 13. For such reasons as stated above, the appeal and the application for stay are liable to be dismissed and stand accordingly dismissed. I agree.