F.M.A. 1288 of 2010. Case: Debasis Mukherjee Vs State of West Bengal and Ors.. High Court of Calcutta (India)
| Case Number | F.M.A. 1288 of 2010 |
| Counsel | For Appellant: Milan Kr. Bhattacharyya and Sulagna Bhattacharyya, Advs. And For Respondents: Jayanta Kumar Mitra, Ashit Kr. Chakraborty and Subhajit Panja, Advs. And For State: Tapan Kumar Mukherjee and Nilotpal Chatterjee, Advs. |
| Judges | Pranab Kumar Chattopadhyay and Shukla Kabir (Sinha), JJ. |
| Issue | West Bengal Co-operative Societies Act, 1987 - Section 48; West Bengal Co-operative Societies Rules, 1987 - Rules 48 and 25 |
| Judgement Date | August 05, 2011 |
| Court | High Court of Calcutta (India) |
Judgment:
Pranab Kumar Chattopadhyay, J.
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This appeal has been preferred at the instance of the writ Petitioner assailing the judgment and order dated 10th September, 2010 passed by a 2 learned Judge of this Court whereby and whereunder the said learned Judge dismissed the writ petition on merits.
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The essential facts which are relevant for the purpose of deciding the issues raised in this appeal are briefly narrated hereinafter:
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The Appellant herein was appointed to the post of Junior Assistant,Grade-VI in Hooghly District Central Co-operative Bank Ltd. on 17th June,1993. The Chief Executive Officer of the said Bank issued an order of suspension to the said Appellant and subsequently Board of Directors of the said Bank dismissed him from services of the Bank upon accepting the report of the enquiry officer on 17th November, 1994. After long lapse of almost four and half years the said Appellant submitted a representation on 25th march, 1999 before the Chief Executive Officer of the Bank challenging the aforesaid order of dismissal. On 5th July, 2001 identical representation was submitted by the Appellant before the said Chief Executive Officer. The Appellant herein thereafter filed a writ petition being WP No. 6974 (W) of 2003 after lapse of almost 9 years from the date of dismissal.
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The said writ petition was taken up for hearing before a learned Judge of this Court on 29th April, 2010 when the learned Advocate of the Appellant herein prayed for leave to take recourse to the alternative Forum provided under the West Bengal Co-operative Societies Act including the filing of a representation before the Assistant Registrar, Co-operative Societies Hooghly. Considering the aforesaid submissions, learned Single Judge disposed of the writ petition by granting leave to the said Appellant herein to avail of the alternative Forum.
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Pursuant to the aforesaid leave granted by this Court the Appellant herein filed the appeal before the Assistant Registrar of Co-operative Societies, Hooghly on 12th May, 2010. The Deputy Registrar of the Co-operative Societies, Hooghly ultimately disposed of the aforesaid appeal on 3rd June, 2010 by directing the Appellant herein to prefer the appeal against the order of dismissal dated 17th November, 1994 to the General Body of the Bank and the said General Body of the Bank was also directed to dispose of the appeal of the Appellant in accordance with law in its general meeting dated 13th June, 2010 treating the said appeal in the miscellaneous agenda.
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The relevant extracts from the aforesaid order of the Deputy Registrar Cooperative Societies dated 3rd June, 2010 are set out hereunder:
After carefully hearing the representation submitted by Sri Debashis Mukherjee in accordance with the judgment passed by Hon'ble Calcutta High Court and after hearing both the parties and carefully considering all the documents submitted so far and in accordance with justice, equity and good conscience on application of mind it is ordered that as per Clause 15 (2) of the Appendix to the chapter Vi of the W.B.C.S. Act. 1983 Sri Debashis Mukherjee may prefer to appeal against, the order No. 5539/135 P.dt. 17.11.1994 passed by the Chief Executive Officer, Hooghly Dist.Central Coop. Bank Ltd. to the General Body of the H.D.C.C. Bank Ltd. within a week and the General Body of the H.D.C.C.B. Ltd shall dispose the appeal in accordance with law in its General Meeting dt. 13.6.2010 treating it in the Miscellaneous agenda and also communicate the decision with a fortnight from 13.6.2010.
Sd/-
(S. Sarkar)
3.06.2010 -
The appeal of the Appellant was thereafter placed in the meeting of the General Body of the Bank and General Body Members in the said Annual General Meeting unanimously rejected the said appeal of the Appellant herein.
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The rejection of the appeal was communicated to the Appellant by the Chief Executive Officer of the Bank on 25th June, 2010. Challenging the said decision of the General Body of the Respondent Bank, the Appellant, herein again filed a writ petition being W.P. No. 14751 (w) 2010 before this Court which was ultimately dismissed by the learned Single Judge by the impugned judgment and order dated 10th September, 2010.
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Assailing the aforesaid judgment and order passed by the learned Single Judge instant appeal has been preferred by the writ Petitioner.
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Mr. Milan Bhattacharjee, learned Counsel representing the Appellant submitted that the Appellant herein was dismissed from service without complying with the requirements as provided in Section 48 (f) of the West Bengal Co-operative Societies Rules 1987 since the Appellant was not supplied with the copy of the enquiry report and second show cause notice in respect of penalty proposed.
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Mr. Bhattacharjee specifically submitted before this Court that the disciplinary proceedings were conducted against the Appellant in clear violation of the principles of natural justice and without complying with the mandatory requirements of Rule 48 (f) of the West Bengal Co-operative Societies Rules, 1987.
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Mr. Bhattacharjee further submitted that the order of dismissal was passed by the disciplinary authority without assigning any reason. It has also been submitted on behalf of the Appellant that the Appellate Authority also did not furnish any reason while affirming the order of dismissal passed by the disciplinary authority.
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Mr. Bhattacharjee specifically urged before this Court that the Appellate authority also failed to take note of the fact that the disciplinary authority while conducting the disciplinary proceedings clearly violated the mandatory provision of Rule 48 (f) of the West Bengal Co-operative Societies Rules. The learned Counsel representing the Appellant submitted that non-service of the copy of the enquiry report vitiated the entire disciplinary proceedings.
Rule 48 (f) of the West Bengal Co-operative Societies Rules is set out hereunder:
To appoint, discharge or to dismiss or to remove employees of the society:
Provided that no employee of a co-operative society shall be dismissed or removed from service except after an inquiry in which he has been informed of the charges against him and given 6 a reasonable opportunity of being heard in respect of those charges, and where it is proposed, after such inquiry, to dismiss or remove him, until he has been given a reasonable opportunity of making representation on the penalty proposed.
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Mr. Bhattacharjee submitted that the disciplinary authority expressed its biased attitude towards the Appellant from the stage of initiation of the disciplinary proceedings since the enquiry officer was appointed before allowing the Appellant to submit his reply to the charge sheet and as a matter of fact the Appellant was called upon to submit his reply to the charge sheet to the enquiry officer.
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Mr. Bhattercharjee submitted that the enquiry officer should have been appointed by the disciplinary authority only after considering the reply of the Appellant in answer to the charge sheet.
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Mr. Bhattacharjee referred to and relied on the following decisions in support of his aforesaid arguments:
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State of Punjab v. V.K. Khanna AIR 2001 SC 343 paragraphs 21 and 34.
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Tea Board and Anr. v. Rasamoy Roy and Ors. 2008 (1) CHN 1, Paragraphs 22 and 39.
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Sanjoy Kumar Singh v. Union of India 2002 (2) SLR 266, Paragraphs 13 and 14.
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Mr. Bhattacharjee submitted that the disciplinary authority herein flagrantly violated the aforesaid provision of Rule 48 (f) of the West Bengal Cooperative Societies Rules while dismissing the Appellant from service by issuing the final order of punishment in the disciplinary proceedings.
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Mr. Bhattacharjee referred to and relied on the following decisions in support of his aforesaid contentions:
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Amalesh Maity v. State of West bengal and Ors. 2004 (2). CLJ 313, Paragraphs 11,18,24 & 46.
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Bhabani Adhikari v. W.B. State Co-operative Bank Ltd. 2006 (1) CLJ 1, Paragraphs 36,38,54 & 56.
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Bhabani Adhikari v. W.B. State Co-operative Bank Ltd. reported in 2009 (1) CHN 573, Paragraphs 12,15,23,29,33 & 56.
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Subimal Das v. State of West Bengal and Ors. 97 CWN 168, Paragraphs 11 & 15.
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Mr. Jayanta Mitra, learned Senior Counsel representing the Respondent-bank strongly opposed the aforesaid claims of the Appellant herein.
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Mr. Mitra submitted that the Appellant herein at no point of time assailed the order of dismissal on the ground of non-supply of the report of the enquiry officer or due to non-issuance of the second show cause notice or due to noncompliance with Rule 48(f) of the West Bengal Co-operative Societies Rules 1987.
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Referring to the representations submitted by the Appellant on 20th March, 1999 and 5th July, 2001, Mr. Mitra submitted that no complaint was made regarding violation of Rule 48(f) of Rules 1987 in the aforesaid representation by the Appellant. Referring to the first writ petition filed on behalf of the Appellant herein being W.P. No 6974 (W) of 2003. Mr. Mitra further submitted that the Appellant herein did not assail the order of dismissal on the ground that the said Appellant had not been given an opportunity of hearing after supply of the report of the enquiry officer or even on the ground that no second show cause notice had been issued before imposition of the penalty of dismissal in terms of Rule 48 (f).
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Mr. Mitra submitted that the Appellant herein also did not question the...
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