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2024 Supreme(Cal) 209
IN THE HIGH COURT AT CALCUTTA
ARIJIT BANERJEE, M.V. MURALIDARAN, JJ.
Sahajadpur S.K.U.S. Limited & Ors. – Appellant
Versus
Nimai Sabal & Ors. – Respondents
MAT 1969 of 2023, IA No: CAN/1/2023, CAN/2/2023
Decided on : 10-04-2024
Advocate Appeared:
For the Appellant : Mr. Milan Chandra Bhattacharya, Sr. Adv., Mrs. Sulagna Bhattacharya (Bagchi)
For the Respondent: Mr. Debashis Banerjee, Mr. Rakesh Jana
For the State : Mr. Priyankar Saha, Mr. Rudrajit Sarkar
Writ petitions against cooperative societies are not maintainable unless a statutory breach is demonstrated; principles of natural justice must apply, but the lack of participation by the employee negates claims of prejudice.
Headnote:(A) West Bengal Cooperative Societies Act, 2006 - West Bengal Cooperative Societies Rules, 2011 - Disciplinary proceedings - Major penalty of dismissal from service imposed on managerial employee after alleged misconduct - High Court's Single Judge quashed dismissal and directed de novo proceedings citing procedural irregularities and violation of natural justice. (Paras 3, 12, 43)
(B) Maintainability of Writ Petition - Framework of Article 226 - Writ jurisdiction not available against a Cooperative Society or for personal service contracts without public law elements. Appellate remedy existent under statutory provisions. (Paras 51, 72)
(C) Knowledge of Procedures - Employee’s failure to participate in disciplinary proceedings allowed it to continue ex parte. Court ruled non-supply of certain documents did not prejudice respondent. (Paras 25, 34, 54)
Findings of Court:
The proceedings conducted were in accordance with the law and principles established in various Supreme Court judgments, emphasizing the requirement for observance of natural justice unless expressly excluded. Writ was deemed not maintainable due to available alternative remedies. (Paras 60, 72)
Issues: Whether the writ petition could be maintained against a private cooperative body in the absence of statutory violation, and the consequences of non-participation in disciplinary proceedings.
Ratio Decidendi: Natural justice principles must apply; however, writ jurisdiction is not applicable without essential public elements or statutory violation proven.
Result: Appeal allowed, impugned order set aside; the respondent is granted liberty to file an appeal against the dismissal order.
| Table of Content |
|---|
| 1. challenge to the dismissal order. (Para 1 , 2 , 3) |
| 2. arguments against maintainability of writ petition. (Para 4 , 5 , 6 , 8 , 10) |
| 3. nature of disciplinary procedure and required standards. (Para 12 , 14 , 21) |
| 4. violation of natural justice alleged. (Para 16 , 18 , 19) |
| 5. procedures followed in disciplinary proceedings. (Para 24 , 26 , 27) |
| 6. maintainability of writ against a cooperative society. (Para 50 , 52 , 54) |
| 7. final ruling on the appeal. (Para 72) |
JUDGMENT :
M.V. Muralidaran, J.
Calling into question the correctness of the order dated 3.8.2022 passed in W.P.A.No.4198 of 2022 by the learned Single Judge, the present appeal is filed by respondents 9 to 12 in the writ petition.
2. The first respondent has filed the writ petition challenging the disciplinary proceedings which has culminated in the imposition of a major penalty of dismissal from service.
3. By the order dated 3.8.2022, the learned Single Judge, disposed of the writ petition. It is propitious to reproduce the operative portion of the order of the learned Single Judge, which reads thus:
“Under such circumstances, the enquiry report and the order of dismissal from service are set aside and quashed.
The proceedings will continue de novo.
The petitioner will continue to be under suspension and the subsistence allowance payable in terms of the rules shall be credited to the bank account of the petitioner. The petitioner shall be at liberty to withdraw the amount.
The charge-sheet is not being set aside. The list of witnesses and the list of documents relied upon by the disciplinary authority shall be supplied to the petitioner.
The relevant documents shall be supplied.
The enquiry proceeding shall continue de novo upon the petitioner filing his written statement. A new enquiry officer will be appointed. Such written statement shall be filed within four weeks from the date of receipt of the documents and the list of witnesses. The petitioner shall be entitled to cross-examine the PW witnesses, examine himself and his own witnesses. The disciplinary proceeding shall be concluded upon observation of the principles of natural justice.
This order shall not be construed as an expression of the court on the merits of the allegations against the petitioner.
The writ petition is disposed of.
There shall be no order as to costs.”
4. Assailing the impugned order of the learned Single Judge, Mr. Milan Chandra Bhattacharya, learned Senior Advocate for the appellants, submitted that no writ lies against the appellant Cooperative Society and the terms and conditions of service are regulated by legislative Rules, being Rule 106, along with Appendix II of Chapter V of the West Bengal Cooperative Societies Rules, 2011. There is no violation of statutory rules in conducting the enquiry proceedings. The writ petition is barred on the ground of availability of an alternative remedy. Without providing any opportunity to the Society to file an affidavit in opposition, the writ petition was disposed of by the learned Single Judge. The first respondent/original writ petitioner has not suffered any prejudice by not having the copy of the enquiry report, inasmuch as he did not raise any such question of prejudice in his reply dated 7.11.2022.
5. Expatiating the ground of challenge, learned Senior Advocate submitted that in the affidavit in reply filed in the delay condonation application, an admission was made to the effect of non-maintainability of the writ petition against a Cooperative Society. Reliance is placed on the judgment of the Apex Court in the case of Supriyo Basu and others v. W.B. Housing Board and others , (2005) 6 SCC 289 . By placing reliance upon the decision in the case of Bholanath Roy v. State of West Bengal,(1996) 1 CLF 502, learned Senior Advocate submitted that a writ petition is maintainable against a Society only if it is demonstrated that any mandatory provision of the Act or the Rules framed thereunder have been violated by it.
6. Learned Senior Advocate for
