1998 Supreme(Guj) 93

Gujarat High Court
Judgename :M.R.CALLA
ARVINDBHAI MULUBHAI BHUTAIYA - Appellant
Versus
AMRELI DISTRICT central CO-OPERATIVE BANK LIMITED - Respondent
S.C.A. 5552 of 1997
Decided On : 03/02/1998

Headnote:(a) Constitution of India, 1950 - Arts. 12 & 226 - Gujarat Co- operative Societies Act, 1961 - Secs. 73 & 74 - Bank does not withstand touchstone laid down by Supreme Court - Not meeting tests - Held, it is not State or other authorities or agency or a instrumentalities under Art. 12.

       This Court is of the considered opinion that the respondent-Bank does not withstand the touchstone laid down by the Supreme Court and our own High Court and it does not meet the test so as to come within the ambit of `other authorities or `agency or `instrumentality of the State within the meaning of Art. 12 of the Constitution of India.

       [Para 21]

       (b) Constitution of India, 1950 - Arts. 12 & 226 - Gujarat Co-operative Societies Act, 1961 - Secs. 73 & 74 - Writ - Issue of - Court is empowered to issue writ against Bank - It cannot be issued for enforcement of private rights.

       This Court has no hesitation in holding that in a given case a writ order or direction can be issued against a co-operative society like the respondent-Bank even if it is not an `authority or an `agency or `instrumentality of the State under Art. 12 of the Constitution of India, in the writ jurisdiction of this Court in the nature of public law remedy. The only rider is that it can not be invoked for enforcement of any private right against such body. The only question, therefore, now remains is as to whether there was any statutory obligation on the respondent Bank as an employer in the nature of public duty or obligation and not private duty and obligation and this aspect of the matter has to be dealt with now so as to adjudicate as to whether the petitioners are entitled to the issue of such an order or direction in the nature of writ in their favour vis a vis the respondent-Bank and which is that statutory obligation on the respondent-Bank as an employer in the nature of public duty or obligation, which it has failed to discharge. This aspect is to be dealt with in later part of this order while considering the merits.

       [Para 22]

       (c) Constitution of India, 1950 - Art. 226 - Gujarat Co-operative Societies Act, 1961 - Secs. 73 & 74 - Writ - Issue of - No mis- statement and fact - No supression of fact - No other efficacious remedy - Held, petitioner cannot be thrown away.

       The petitioners have made any such mis-statement of fact which can be said to have been false to their own knowledge at the time of filing the petitions and nothing wrong is found against their conduct as petitioners before this Court and, therefore, these petitions cannot be thrown on the objection of suppression of facts. Even the objection with regard to alternative remedy cannot be sustained because in such like matters when the order is passed against the petitioners, they would be deprived of invoking the jurisdiction of this Court under Art. 226 when there is no other alternative adequate equally efficacious remedy. In absence of any such equally efficacious remedy, the Court does not find it a fit case to threw away these petitions on the question of alternative remedy and this objection is not found to be tenable.

       [Para 23]

       (d) Gujarat Co-operative Societies Rules - Rule 33 - Bombay Industrial Relations Act and Standing Order 22 - Termination - No compliance with standing Order 22 - Held, Bank failed to discharge its obligations and termination orders cannot be sustained.

       The fact remains that at the time of termination of their services, Standing Order No. 22 had to be complied and the respondent-Bank could not have terminated their services in the manner it terminated on 28.7.1997. It is, therefore, held that the respondent Bank had failed to discharge its obligations under the Standing Orders registered under the Bombay Industrial Relations Act and, therefore, the termination orders cannot be sustained in the eyes of law.

       [Para 26]

       (e) Gujarat Co-operative Societies Rules - Rule 33 - Bombay Industrial Relations Act - Termination - No case of malice - Case of malice made out - Orders passed in hot haste - Held, it smacks of lack of bonafides.

       This court is of the considered opinion that even if it is not a case of malice in fact, the case of malice in law is made out. When an order is passed for a purpose, which is not permissible under law or for a purpose which is not authorised under the law and the desired motivated result is brought about by ignoring or violating the law, it would constitute a case of malice in law and in the facts of the present case there is ample material to show that these orders were passed in hot haste and sought to be put to the logical end on the very day so as to render 45 employees jobless by one stroke of pen in violation of the Standing Orders. The same certainly smack of lack of bonafides and in any case these orders cannot be said to have been passed for a purpose and object authorised by law even if it is assumed in favour of the respondent bank that the selections and appointments given at the time of predecessor Board of Directors suffered from any infirmities or irregularities as pointed out by the respondent-Bank.

       [Para 27]

       (f) Natural Justice - Services terminated of 45 employees - No notice - No personal hearing - Held, termination cannot be sustained - Bank has to follow principles of natural justice.

       The petitioners were entitled to an opportunity of hearing, at least an action inspired notice, and the minimum requirements of principles of natural justice. Admittedly none of these requirements have been complied with by the respondent-Bank at the time of passing the termination orders with regard to these 45 petitioners, upon whom the termination was inflicted at a stretch on the same day i.e., on 28.7.1997 so as to make this order a fair accomplish against them and hence their termination as such cannot be sustained in the eyes of law.

       [Para 28]

       Under the common law and custom also the respondent-Bank was under an obligation to follow the principles of natural justice before passing the orders and appraise the concerned petitioners as to on what ground their services were sought to be terminated.

       [Para 30]

       (g) Constitution of India, 1950 - Art. 226 - Bank to allow its customers to withdraw amount - Held, it can make inquiry but cannot stop operating of account.

        [Para 30]

       Bank, as a Banker owed a duty to the petitioner as an account holder customer to allow him to withdraw his amounts as per his requirements. If at all any inquiry could be held in accordance with law, the respondent-Bank could have initiated such an inquiry, but it could not stop the petitioner from operating his own account.

       [Para 32]