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2013 Supreme(Cal) 828
High Court of Judicature at Calcutta
SOUMITRA PAL, J.
Asim Kumar Hajrah
Versus
The State of West Bengal & Others
W. P. No. 6399 (W) of 2009 (Appellate Side)
Decided On : 24-12-2013
For the Petitioner:L.K. Gupta, Senior Advocate, Amalesh Roy, Advocate.
For the Respondents:R2 to R6, Tarun Kumar Roy, Senior Advocate, Sudhindranath De, Arnab Roy, Sailaja Nanda Bhattacharya, Amratalal Chatterjee, Debrabata Ko ley, Advocates.
Rule 48(f) of the 1987 Rules, which provides for the procedure to be followed in disciplinary proceedings against an employee of a cooperative society, is mandatory in nature and cannot be departed from.
Headnote:
CO-OPERATIVE SOCIETY - Disciplinary proceedings - Dismissal from service - Maintainability of writ petition - Applicability of Rule 48(f) of the 1987 Rules - Compliance with principles of natural justice - Validity of impugned order of dismissal.
Fact of the Case:
Petitioner, a Branch Manager of the respondent bank, suffered a severe cerebral attack and was admitted to a hospital with loss of consciousness. He was placed under suspension and served with a show cause notice for alleged irregularities in sanctioning and disbursement of loans. The petitioner, through his wife, responded to the notice stating his physical condition and requesting not to proceed with the notice till he regained his memory. The bank, despite being aware of the petitioner's condition, initiated departmental proceedings and passed an order of dismissal. The petitioner challenged the order by filing a writ petition.
Finding of the Court:
1. The writ petition is maintainable as the impugned order was passed when the 1983 Act was in force and the rights accrued to the petitioner under the 1983 Act and the 1987 Rules, particularly Rule 48(f) thereof, are saved under the proviso to section 6(2) of the 2006 Act. 2. Rule 48(f) of the 1987 Rules, which provides for the procedure to be followed in disciplinary proceedings against an employee of a cooperative society, is mandatory in nature and cannot be departed from. 3. The decision of the Board of Directors of the bank to rescind the earlier decision to hold a formal departmental enquiry and to authorize the Chairman to “personally assess” the charges against the petitioner is without jurisdiction and illegal. 4. The impugned order of dismissal passed by the Chairman without examining witnesses, proving documents, and without proposing a penalty, is non-est in the eye of law and thus illegal. 5. The direction in the impugned order to realize the dues from the petitioner by adjustment from his accounts without quantifying the loss suffered by the bank is unjust, malafide, arbitrary, highhanded, and illegal.
Issues: 1. Whether the writ petition is maintainable in view of the repeal of the 1983 Act by the 2006 Act and the applicability of the 2011 Rules. 2. Whether the proceedings were conducted following Rule 48(f) of the 1987 Rules and whether the impugned order dated 29th January 2009 directing dismissal of the petitioner was in accordance with the established principles of law.
Ratio Decidendi: 1. The provisions contained in the proviso to section 6(2) of the 2006 Act save the action taken under the 1983 Act, and therefore, the writ petition is maintainable. 2. Rule 48(f) of the 1987 Rules, which provides for the procedure to be followed in disciplinary proceedings against an employee of a cooperative society, is mandatory in nature and cannot be departed from. 3. The decision of the Board of Directors of the bank to rescind the earlier decision to hold a formal departmental enquiry and to authorize the Chairman to “personally assess” the charges against the petitioner is without jurisdiction and illegal. 4. The impugned order of dismissal passed by the Chairman without examining witnesses, proving documents, and without proposing a penalty, is non-est in the eye of law and thus illegal. 5. The direction in the impugned order to realize the dues from the petitioner by adjustment from his accounts without quantifying the loss suffered by the bank is unjust, malafide, arbitrary, highhanded, and illegal.
Final Decision: The writ petition is allowed. The impugned order dated 29th January 2009 is set aside and quashed. The respondent bank is directed to pay the full wages of the petitioner till 31st January 2009, after subtracting the amount already paid. The respondent bank is also directed to release the matured amount of the six term deposits along with interest accrued thereon and further interest on the total matured sum to be calculated from the date of maturity of the said certificates till the date of actual payment to the petitioner's wife. The respondent bank and the Board of Directors of the bank are each directed to pay costs of Rs. 5100/- to the petitioner.
Soumitra Pal, J.
In this writ petition, Asim Kumar Hajrah, the petitioner, has challenged the order, dated 29th January, 2009, issued by the Managing Director, West Bengal State Co-operative Bank Limited, (for short the ‘said bank’) the respondent no.5, being annexure P8 to the writ petition, dismissing him from service with immediate effect and directing that the subsistence allowance paid to him during his period of suspension shall be treated as the full and final payment made to him and also holding that all dues outstanding against him should be realised by way of adjustment from his accounts standing in his credit, if any, in the bank on exercise of the banker’s lien thereon.
The facts in brief, which are relevant for adjudication, are that on 26th February, 2007, while being posted as the Branch Manager, Poura Bhavan Branch of the said Bank, the petitioner suffered a severe cerebral attack and was admitted in a hospital at Kolkata with loss of consciousness. Since then he has undergone treatment in different hospitals. At present the petitioner is unable to communicate verbally or non-verbally and is fed artificially. Because of such mental infirmity, as he is not in a position either to put his signature or to convey instruction to his advocate he had filed this writ petition with the help of his wife Anjali Hajrah, the next friend, who is major, of sound mind and her interests are not adverse to that of the writ petitioner. It has been stated that while he was critically ill and was on leave for medical treatment, the Managing Director of the said bank, inspite of knowing fully well about his physical condition, by an order dated 17th July, 2007 made over to his daughter, had placed him under suspension whereby he was directed not to attend office unless he was asked by the Managing Director in writing and not to leave the headquarters without the prior permission in writing. Subsequently, the petitioner was called upon by a show cause notice dated 19th September, 2008 as to why departmental proceeding should not be initiated against him for negligence in discharge of duties, indifference towards the interest of the bank and insubordination. In answer, by an advocate’s letter dated 4th October, 2008, it was brought to the notice of the respondent no.5 that the petitioner had undergone medical treatment and was not in a position to give reply effectively to the notice to show cause and request was made not to proceed with the said notice till he regained his memory. Thereafter, by an order dated 9th January, 2009, issued by the respondent no.5, served on his wife, it was intimated that the bank had decided to initiate departmental proceedings. The said order contained a list of Article of Charges, imputations, list of documents and list of witnesses to be relied on to prove the charges. The Article of charges levelled against the petitioner pertained to alleged irregularities in sanction and/or payment and disbursement of loan or issuance of bank guarantee by the petitioner as Branch Manager of the said Branch to different customers. By an advocate’s letter issued on behalf of the petitioner, delivered on 16th January, 2009, the authorities were requested not to proceed with the disciplinary proceedings in view of the physical condition of the petitioner of which the respondents were aware. Request was also made to release the six term-deposits of the petitioner which had matured. Thereafter, the respondent no.5 issued the order of dismissal which, as noted, is under challenge.
The writ petition was moved on 30th June, 2009 when, by an order, directions were issued to file affidavits. It was recorded in the order that all questions including the point of maintainability of the writ petition would be considered at the time of hearing and the Regional Provident Fund Commissioner, Employees’ Provident Funds Organization, Kolkata, the respondent no.7, was directed to consider the release of the employees provident f
