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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
S.V. Gangapurwala, A.M. Dhavale, JJ.
Kiran - Appellant
Vs.
State of Maharashtra - Respondent
Writ Petition No. 3344 of 2018
Decided On : 04-07-2019
Constitution of India,1950 – Article 12,226 and 227 - Maharashtra Industrial Relations Act - Section 35(2) – Embezzlement - Suspension and termination – Mandamus - Petitioner was employed as Clerk on daily wages in respondent - Bank - Thereafter he was regularized in service and in due course he was promoted to the post of manager - There was huge embezzlement of crores in the respondent - Bank when petitioner was Manager - In all, 131 FIRs came to be lodged in respect of embezzlement - Petitioner was called upon by letter to submit original proceeding book of meetings as well as proceeding books of administrative board of bank which according to petitioner were never with him - He was served with show-cause notices petitioner came to be suspended - He was served with charge-sheet with allegations regarding securing loan by submitting false documents, taking benefit of wrongful promotion, negligence in work, and non-cooperation with department by not accepting notices and directions - Petitioner was held guilty for carelessness and negligence and was terminated - Writ petition filed by petitioner challenging suspension and termination was disposed of with liberty to avail alternate remedy - Whether this Court can exercise powers under Article 226 of Constitution of India against respondent in the facts of the case – Held, court may point out that mandamus cannot be denied on ground that the duty to be enforced is not imposed by statute - Commenting on development of this law, Professor de Smith states; To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute - It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract - Court share this view - Judicial control over the fast-expanding maze of bodies affecting the rights of the people should not be put into watertight compartment - Court hold that, while dealing with management of taking action against employee indulging in misconduct, respondent was not performing any public function - Service conditions of petitioner were governed by standing orders framed under Section 35(2) of Maharashtra Industrial Relations Act - Those are contractual terms between the employer and the employee - Government does not hold any control over the appointments, service conditions or holding of any DE or any action to be taken against the employee in case of misconduct, the forum for redressal of grievances for the aggrieved employee, Government is not concerned with the employment, continuous management, control over the employee, service conditions and removal of the employee - In the light of these facts, court are not inclined to exercise our jurisdiction under Article 226 of the Constitution in the present case - In view of the above, court do not want to enter into the challenge on merits of the order of termination and the legality of constitution of the first appellant forum and the proportionality of the sentence - Petitioner can avail any other remedies if available under the law - Petition dismissed.
JUDGMENT :
A.M. Dhavale, J.
Rule. Rule made returnable forthwith. Heard finally with the consent of the parties and taken up for final disposal.
2. The petitioner who was Manager of District Central Cooperative Bank Limited (R-3) assails the order of his termination dt. 07.07.2015, decision of dismissal of his appeal dt. 26.12.2017, order of revocation of his promotion dt. 07.07.2014 and seeks his reinstatement with continuity of service, back-wages with all increments and with interest. Apart from merits, the maintainability of the writ petition is challenged on the ground that, District Central Cooperative Society is not instrumentality of the State within the meaning of Article 12 of the Constitution.
3. The petitioner was employed as Clerk on daily wages in respondent No. 3 - DCC Bank on 09.01.1989. Thereafter he was regularized in service and in due course on 01.08.2012 he was promoted to the post of manager. During the period 2011-13, there was huge embezzlement of Rs. 1.45 crores in the respondent No. 3- Bank when the petitioner was the Manager. In all, 131 FIRs came to be lodged in respect of the embezzlement. The petitioner was called upon by letter dt. 17.12.2013 to submit original proceeding book of the meetings as well as the proceeding books of administrative board of the bank which according to the petitioner were never with him. He was served with show-cause notices dt. 04.01.2014 and 05.02.2014. On 10.03.2014, the petitioner came to be suspended. He was served with charge-sheet dt. 22.05.2014 with allegations regarding securing loan by submitting false documents, taking benefit of wrongful promotion, negligence in work, and non-cooperation with the department by not accepting notices and directions. On 04.04.2015, the petitioner was held guilty for carelessness and negligence and was terminated. The writ petition filed by petitioner on 28.07.2015 challenging suspension and termination was disposed of with liberty to avail alternate remedy. The petitioner preferred appeal and thereafter filed writ petition as there was delay in deciding the appeal. The petitioner was called for hearing on 23.12.2017 before three member committee appointed by the Board of Directors. On 26.12.2017, The appeal of the petitioner was dismissed. Hence, this writ petition.
4. The petitioner challenges the order of termination on following grounds.
(a) The petitioner was instrumental in filing various FIRs lodged against the Board of Directors and in view of his conduct, false allegations were levelled against him and mala fide action of dismissal was taken. The Board of Directors were the persons against whom he had made allegations and therefore they could not have taken action against him.
(b) The appeal was preferred before the Board of Directors and they had no authority to sub-delegate its power to three member committee. The Committee had no authority to hear the appeal. The petitioner had good credentials and professional record.
(c) The petitioner was from time to time promoted on account of his credentials and record. He had taken effective steps to enhance the recovery process and huge amount of Rs.245 crores was recovered from the defaulters and successfully distributed amongst the depositors. One of the Directors sitting as a member of the Committee hearing appeal was shown as accused in the FIRs while son of the present Chairman was also shown as the accused. Mr. Solanke and Mr. Pandit, who are the political leaders, were controlling and managing the DCC Bank. They filed frivolous complaints against the petitioner to secure his dismissal. Wife of one of the Directors namely Lata Sanap was also a member of the Committee hearing the appeal. The Board of Directors were involved in the scam of Rs. 145 crores by way of fraudulent loans. The petitioner and the Administrator - Shivanand Taksale took steps to ensure fair recovery rates. Thus, the action taken against the petitioner was mala fide and with intention to pressurize the petiti
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