ORDER 1. A preliminary objection is taken by the respondent No.3 in the matter that the petitioner is having an alternative and efficacious remedy of filing an appeal before the Appellate Authority in terms of the Rules, but the petitioner without availing the alternative and efficacious remedy has directly approached this Court by filing a petition under Article 226 of the Constitution of India, which is not maintainable. It is submitted that the order impugned is a well reasoned and justified order passed under the relevant provisions of the Act and by the competent authority. Even if for the sake of arguments it is assumed that the order is not passed by the competent authority then the aforesaid ground can be taken care of by the appellate Authority. 2. The petition has been filed by the petitioner being aggrieved by the order dated 26.9.2019 passed by the respondent No.3, whereby the petitioner's service as a Samiti Prabandak has been terminated on account of alleged grave misconduct while discharging his duty. It is stated that the impugned order has been passed without following the due procedure of law as contemplated in the statutory recruitment Rules known as Zila Sahakari Kendriya Banko Ke Sewayukto Ke (Niyojan, Nibandhan Tatha Karya Stithi) Sewa Niyam. It is submitted that the case of the petitioner could have only been considered by the Departmental Inquiry Board as defined in the Seva Niyam, who is the only competent authority to conduct inquiry as per the procedure in the Human Resources Policy framed under the Sewa Niyam. It is submitted that once the order impugned is passed by incompetent authority therefore, the alternative remedy of filing an appeal will be of no hindrance to the petitioner to prefer a writ petition before this Hon'ble Court in view of the law laid down by the Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others [ (1998) 8 SCC 1 ]. In such circumstances the petition directly before this Court for want of alternative remedy is maintainable. 3. It is further submitted that in terms of the law laid down in the case of Sevaram v. Board of Revenue [1983 RN 353] the provisions of Sewa Niyam governing the service conditions of the employees, particularly with respect to the disciplinary proceedings are statutory in nature, therefore, the writ petition is maintainable. 3. It is further submitted that in terms of the law laid down in the case of Sevaram v. Board of Revenue [1983 RN 353] the provisions of Sewa Niyam governing the service conditions of the employees, particularly with respect to the disciplinary proceedings are statutory in nature, therefore, the writ petition is maintainable. He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of M.P. Rajya Sahakari Bank v. State of M.P. and others [ 2007 (12) SCC 529 ]. 4. In view of the aforesaid submissions made by the rival parties and considering the law laid down by the Hon'ble Supreme Court in the case of Whirlpool Corporation (supra), as well as M.P. Rajya Sahkari Bank (supra), the petition is held to be maintainable. 5. The petitioner was initially appointed as a Samiti Prabandhak on 8.9.1998 in the respondent no.3 establishment. In exercise of powers under section 55 (1) of the Act of 1960, the respondent No.2 has framed the Sewa Niyam, which are having a statutory force in view of the Full Bench judgment in the case of Sewaram (supra). On the basis of false complaint the petitioner was placed under suspension vide order dated 19.1.2015 on account of financial irregularities. On 28.2.2015 he was served with a charge-sheet and vide order dated 13.3.2015 one Ram Kumar Sharma has been appointed as inquiry officer to conduct inquiry on account of misconduct of serious financial irregularities. On taking objection by petitioner one inquiry committee has been constituted in which Neeraj Mehra (Branch Manager), Satya Prakash Arya (Branch Manager) and Brahma Swaroop Sharma (Society Manager) were appointed as a member of so called committee to conduct inquiry, but said committee has not been constituted as per clause 3 of the Human Resources Policy framed under the Sewa Niyam. It is submitted an arbitrary inquiry has been conducted by the incompetent authority which is contrary to the statutory provisions of Sewa Niyam. Thereafter the petitioner's services has been terminated vide impugned order. It is submitted an arbitrary inquiry has been conducted by the incompetent authority which is contrary to the statutory provisions of Sewa Niyam. Thereafter the petitioner's services has been terminated vide impugned order. By the impugned order not only petitioner's services was terminated but payable retiral dues to him including gratuity has also been forfeited and recovery was ordered against the petitioner with a further direction to lodge an FIR without following due process of law as contemplated under section 4(6) of the Payment of Gratuity Act, 1972 as entire enactment would have overriding effect with reference to any inconsistency in any other provision or instrument. It is submitted that without following the due process of law as contemplated under Rule 49 of the Sewa Niyam, the impugned order of termination and recovery has been passed. It is submitted that the amount of financial irregularity in the present matter exceeds Rs.10 Lacs and as per rule 49, Department Inquiry Board should have been constituted to conduct inquiry in the matter, but no such board has ever been constituted and the impugned order has been passed without following the due process of law as contemplated in rule 49 of the Sewa Niyam. The aforesaid aspect was considered by this Court in the case of W.P.No.1970/2019 (Ram Avtar Sharma v. State of M.P. and others) decided on 1.10.2019, wherein while considering the rule 49 of the Zila Sahakari Kendriya Banko Ke Sewayukto Ke (Niyojan, Nibandhan Tatha Karya Stithi) Sewa Niyam and also considering the Full Bench judgment in the case of Sewaram (supra), has finally allowed the writ petition considering rule 2.2.1 of Seva Niyam and 49.3.2.3. and liberty was extended to the respondents to proceed against the petitioner in accordance with law, if so desired. It is argued that the controversy in the present case is fully covered by the order passed by this Court in the case of Ramavtar Sharma. He has prayed for a similar relief to be extended to him. 6. Counsel for the petitioner has argued that although the Board has been constituted to examine the case of the petitioner and the impugned order has been passed, but the constitution of Board is contrary to the Rules. He has drawn attention of this Court to the rules, wherein the constitution of Board is provided. 6. Counsel for the petitioner has argued that although the Board has been constituted to examine the case of the petitioner and the impugned order has been passed, but the constitution of Board is contrary to the Rules. He has drawn attention of this Court to the rules, wherein the constitution of Board is provided. It is argued that the Board constituted should be in accordance with the rules and as the embezzlement amount is more than 10 Lacs then any action if contemplated against the petitioner is required to be taken by the Departmental Inquiry Board. It is argued that if the Departmental Inquiry Board is not constituted in accordance with the rules then the entire exercise of passing an impugned order is a futile exercise and the order is unsustainable even filing of an appeal before the appellate authority against the impugned order will be futile exercise. If the authority who has not having any jurisdiction to pass the impugned order then the writ petition can directly be filed before this Court in view of the law laid down by the Hon'ble Supreme Court in the case of Whirlpool (supra). 7. Per contra counsel appearing for the respondent No.3 has vehemently opposed the contentions and has argued that apart from the alternative remedy available to the petitioner before the Appellate Board, the appeal before the Board of Director of the respondentBank in terms of Rules of 59.1.3 of Sewa Niyam is provided and he is also having an alternative remedy available to him under rule 55 (2) of M.P. Cooperative Societies Act, 1960. It is contended that the order impugned has rightly been passed by the committee constituted as per the rules. The same does not call for any interference in the present writ petition. It is submitted that the complaint which is alleged to be false complaint in para 5.3 of the petition is entirely different complaint and is not related to the matter involved in the present petition. It is submitted that the petitioner has deliberately concealed the fact that the show cause notice dated 14.10.2015 has been issued to him and on the objection of the petitioner fresh three member Departmental Inquiry Board was constituted. The impugned order has been passed by following the due process of law as contemplated under rule 4 (6) of Payment of Gratuity Act, 1972. The impugned order has been passed by following the due process of law as contemplated under rule 4 (6) of Payment of Gratuity Act, 1972. It is submitted that as per the Statutory Rules governing service condition of employees since the amount of financial irregularity in the present matter exceeds Rs.10 Lacs which comes under major misconduct as per rule 47 of the Sewa Niyam, the Departmental Inquiry Board defined under rule 2.21 was constituted to conduct inquiry in the matter as per the provisions of Rule 49 of the Sewa Niyam which conducted its inquiry under rule 49.3.2.3 of Sewa Niyam by following due process of law and after giving an opportunity of hearing to the petitioner and on the basis of inquiry report the order of forfeiture of gratuity has been passed as per the provisions of Rule 24.3 to 24.5 of the Sewa Niyam. Such provisions are incorporated in Sewa Niay inconformity of section 4(6) (a), (b) and (c) which categorically provides the forfeiture of gratuity and since in the present matter, the services of the petitioner was terminated after a full fledged inquiry wherein the petitioner was found guilty, therefore, the order of recovery of financial loss from his gratuity is completely lawful and no illegality has been committed by the authorities while passing the order impugned. Therefore, the decision taken by the authorities to terminate the services has rightly been taken. The authority passing the impugned order is duly competent to pass the termination order of the petitioner no requirement for sending the matter to the Board as argued by the petitioner is required in the facts and circumstances of the case. In such circumstances, no illegality stated to have been committed by the respondents. It is further contended that from the order impugned it is seen that opportunity of hearing to the petitioner was provided. Thus, the principle of natural justice are duly followed in the matter. In such circumstances, the order impugned has rightly been passed does not call for any interference under Article 226 of the Constitution of India having limited jurisdiction to go into the disciplinary proceedings. Accordingly, he has prayed for dismissal of the writ petition. It is further submitted that the petitioner has already preferred an appeal pending before the Appellate Authority. In such circumstances, the order impugned has rightly been passed does not call for any interference under Article 226 of the Constitution of India having limited jurisdiction to go into the disciplinary proceedings. Accordingly, he has prayed for dismissal of the writ petition. It is further submitted that the petitioner has already preferred an appeal pending before the Appellate Authority. In such circumstances, the petition is not maintainable and petitioner be directed to contest the appeal which is pending consideration. 8. At this stage, learned counsel for the petitioner submits that the filing of an appeal against the order which is passed by the authorities who is having no jurisdiction to pass an order then the writ petition is directly before this Court is directly maintainable and contesting the appeal will be a futile exercise. Filing of writ petition before this Court is maintainable for which he has placed reliance on the judgment of Hon'ble Supreme Court in the case of Whirlpool (supra). 9. Heard the learned counsel for the parties and perused the record. 10. The Constitution of Board is provided in the rules which comprises of following members: ßfoHkkxh; tkap cksMZ foHkkxh; tkap dh lekfIr ij viuk izfrosnu vius Li"V vuq'kalk lfgr ftyk cSad izca/ku dks lkSaisxkA foHkkxh; tkap cksMZ vius lapkyu ds fu;e Lo;a cukxkA foHkkxh; tk¡p eaMy ds fuEu lnL; gksaxs & Ø-a Iknuke gSfl;Rk 1 izca/kd v/;{k 2- cSad lsok;qDr tks fd ofj"B izca/ku&2 dh Js.kh ls fuEu Js.kh dk u gks lnL; 3- cSad lsok;qDr tks fd e/;e izca/ku&1 dh Js.kh ls fuEu J.kh dk u gks lnL; 11. From the perusal of the record, it is seen that the petitioner was put to disciplinary inquiry in pursuance to the misconduct committed by him while serving in the respondent-department. The Branch Manager/inquiry Officer has conducted the entire inquiry into the matter and the inquiry report is submitted to the Chief Executive Officer, Vidisha, who has passed the impugned order. It is argued by the petitioner that when the amount of embezzlement is more than Rs.10 Lacs then the disciplinary inquiry board is required to conduct an inquiry into the matter. It is argued by the petitioner that when the amount of embezzlement is more than Rs.10 Lacs then the disciplinary inquiry board is required to conduct an inquiry into the matter. Clause 2.2.1 of the Rules is required to be seen which is as under: ß2-21 **foHkkxh; tkap cksMZ** ls rkRi;Z ftyk lgdkjh dsUnzh; cSad e;kZfnr ds lsok;qDrksa ds fo:) vkjksfir xaHkhj nqjkpj.k (Major Misconduct) dh :- 10-00 yk[k ls vf/kd dh foRrh; vfu;ferrkvksa ls lacaf/kr foHkkxh; tkap iw.kZ djus gsrq xfBr foHkkxh; tkap cksMZ ls gS] ftls cSadksa ds l{ke vf/kdkjh] tk¡p vf/kdkjh ds :i esa fu;qDr djsaxsA^^ Clause 49.3.2.3 is also relevant which reads as under : ß49-3-2--3 ftyk lgdkjh dsUnzh; cSd ds leLr foHkkxh; tkap izdj.k :-10-00 yk[k ;k mlls vf/kd dh vfu;ferrkvksa ds foHkkxh; tkap izdj.kksa esa tk¡p vf/kdkjh ds nkf;Ro fuoZgu gsrq ,d foHkkxh; tkap cksMZ gksxk] tks viuh izfØ;k fu/kkZfjr dj] ml izfØ;k ls tk¡p iw.kZ djsxkA 'ks"k izdj.kksa esa foHkkxh; tkap dh izfØ;k e-iz- 'kklu esa bl gsrq fu/kkZfjr izfdz;k ls tk¡p dk fujkdj.k fd;k tkossxkA^^ 12. It is argued that the aforesaid rules are not been followed while considering the case of the petitioner and his services has been terminated which is a major misconduct and the authorities to initiate disciplinary proceedings against the petitioner with respect to the disciplinary inquiry board as the amount of embezzlement is pointed out more than 10 Lacs. It is seen that in some of the cases the constitution of Board in terms of the aforesaid Rules was done by the Authorities, but the Board constituted is not in accordance with the Rules. In the present case no Board was constituted and the committee was not constituted in accordance with the disciplinary inquiry Rules. 13. The identical issue was considered by this Court in the case of Ramavtar Sharma (supra), wherein this Court has held as under : “7. A bare perusal of the counter affidavit filed by respondent No.3 reveals that the total amount in dispute is Rs.17,49,958.74/-, which is certainly above Rs. 10 lacs. 13. The identical issue was considered by this Court in the case of Ramavtar Sharma (supra), wherein this Court has held as under : “7. A bare perusal of the counter affidavit filed by respondent No.3 reveals that the total amount in dispute is Rs.17,49,958.74/-, which is certainly above Rs. 10 lacs. In this regard, Rule 2.21 of the Seva Niyam reads thus :- “2-21 ^^foHkkxh; tkap cksMZ^^ ls rkRi;Z ftyk lgdkjh dsUnzh; cSad e;kZfnr ds lsok;qDrksa ds fo:) vkjksfir xaHkhj nqjkpj.k (Major Misconduct) dh :- 10-00 yk[k ls vf/kd dh foÙkh; vfu;ferrkvksa ls lacaf/kr foHkkxh; tk¡p iw.kZ djus gsrq xfBr foHkkxh; tk¡p cksMZ ls gS] ftls cSdksa ds l{ke vf/kdkjh] tkap vf/kdkjh ds :i esa fu;qDr djsaxsA^^ From the above, it is clear that rule 2.21 defines Departmental Enquiry Board, which needs to be constituted for major misconducts of employees with regard to financial irregularities of more than Rs. 10 lacs. Admittedly, no such Board has been constituted in the instant case and no enquiry as contemplated under rule 49.3.2.3 has been conducted. For ready reference, the same is quoted thus:- ß49-3-2-3 ftyk lgdkjh dsnzh; cSad ds leLr foHkkxh; tk¡p izdj.k :-10-00 yk[k ;k mlls vf/kd dh vfu;ferrkvksa ds foHkkxh; tkap izdj.kksa esa tkap vf/kdkjh ds nkf;Ro fuoZgu gsrq ,d foHkkxh; tkap cksMZ gksxk] tks viuh izfdz;k fu/kkZfjr dj] ml izfØ;k ls tk¡p iw.kZ djsxkA 'ks"k izdj.kksa esa foHkkxh; tkap dh izfdz;k e-iz- 'kklu esa bl gsrq fu/kkZfjr izfdz;k ls tkap dk fujkdj.k fd;k tkosxkA^^ As such, the impugned order is completely without jurisdiction and, therefore, availability of alternative remedy would not be a bar in the light of dictum of the apex Court in the case of Whirlpool (supra). 8. In view of the aforesaid, the impugned order is set aside. Respondents are directed to reinstate the petitioner forthwith. However, they shall be at liberty to proceed against the petitioner in accordance with law. It is made clear that if any proceedings are initiated against the petitioner, the same shall be concluded, in accordance with law, within three months of their inception.” 14. In such circumstances, the order impugned is perse illegal arbitrary and is unsustainable in the eyes of law and is also contrary to the rules. Accordingly, the impugned order is quashed. It is made clear that if any proceedings are initiated against the petitioner, the same shall be concluded, in accordance with law, within three months of their inception.” 14. In such circumstances, the order impugned is perse illegal arbitrary and is unsustainable in the eyes of law and is also contrary to the rules. Accordingly, the impugned order is quashed. As this Court has already granted interim relief to the petitioner on 29.11.2019, the petition be reinstated in service forthwith, however, the respondents are at liberty to proceed against the petitioner in accordance with law and in terms of the Zila Sahakari Kendriya Banko Ke Sewayukto Ke (Niyojan, Nibandhan Tatha Karya Stithi) Sewa Niyam. In case any proceedings are initiated against the petitioner by the respondents No.3 then the same shall be concluded in accordance with law within the period of three months of their inception. 15. With the aforesaid observations, petition stands allowed and disposed of.