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2009 Supreme(Gau) 418
IN THE HIGH COURT OF GAUHATI
Biplab Kumar Sharma, J.
Kina Ram Mech – Appellants
Vs.
Assam Co-operative Apex Bank Ltd. and another – Respondent
Writ Petition (C) No. 1781 of 2009
Decided On: 15.06.2009
For Appellant/Petitioner/Plaintiff:S. Kataki, Advocate
For Respondents/Defendant:P.N. Goswami, Advocate
The central legal point established in the judgment is that the Managing Director's action must be based on a decision by the Board of Directors, and misinterpretation of the board's resolution can lead to the quashing of impugned orders.
Headnote:
Superannuation - Departmental Proceeding - Rule 46(c) of Assam Cooperative Apex Bank Ltd. (Staff Rules, 1980) - [Rule 46(c)] - [Annexure-A, Annexure-B] - The court set aside the impugned superannuation notice and charge sheet as there was no decision by the Board of Directors to initiate departmental proceedings against the Petitioner, and the Managing Director misinterpreted the resolution adopted by the Board.
Fact of the Case:
The Petitioner challenged the legality and validity of the superannuation notice and charge sheet issued after his retirement, contending that the Managing Director was not authorized to issue the impugned notices. The Respondent claimed that the action was based on a resolution adopted by the Board of Directors.
Finding of the Court:
The court found that there was no decision by the Board to initiate departmental proceedings against the Petitioner, and the Managing Director misinterpreted the resolution adopted by the Board. The impugned orders were set aside and quashed.
Issues: The issues revolved around the authority to issue the impugned notices and the interpretation of the resolution adopted by the Board of Directors.
Ratio Decidendi: The court held that the Managing Director's action was not based on a decision by the Board, and the impugned orders were set aside as there was no indication of issuance of the charge sheet and superannuation notice in the resolution adopted by the Board.
Final Decision: The writ petition was allowed, and the impugned orders dated 01.01.2009 and 08.01.2009 were set aside and quashed.
Biplab Kumar Sharma, J.
1. The Petitioner, who retired from service of the Respondents on attaining the age of superannuation, has filed this writ petition challenging the legality and validity of the Annexure-B charge sheet dated 8.1.2009 preceded by Annexure-A superannuation notice dated 01.01.2009, by which it was communicated that although, he would retire from service on attaining the age of superannuation with effect from 31.3.2009 but for the purpose of the contemplated departmental proceeding, he would be deemed to be in the services of the bank without, however, any service benefits. Such a course of action was adopted purportedly in exercise of the powers under Rule 46(c) of the Assam Cooperative Apex Bank Ltd. (Staff Rules, 1980).
2. As stated above, the Petitioner has retired from the bank services with effect from 31.3.2009. The basic thrust of the Petitioner is that the Managing Director of the Bank was not authorised to issue the aforesaid Annexure-A & B impugned superannuation notice dated 01.01.2009 and the charge sheet dated 08.01.2009. According to the Respondent No. 2 i.e. the Managing Director of the bank, the action against the Petitioner by the aforesaid impugned superannuation notice and the charge sheet is the outcome of the resolution adopted by the Board of Directors (in short BOD) in its meeting held on 22.12.2008. Since the whole controversy centres around the said resolution adopted in the meeting held on 22.12.2008, it will be appropriate to refer to the said resolution and the same is quoted below:-
Any Other matter (6)
Sri Biswajit Phukan, Hon'ble Member and Sri Kartik Das, Hon'ble Member raised the issue of WP (C) No. 5508/05 PIL No. 50 of 2006, apprised the Board that Sri Kina Ram Mech, the then General Manager (Admn.) had filed Affidavits in the said WP (C) No. 5508/05 & SLP (C) No. 21095-21096 of 2007, SLP (C) No. 7118-7119 of 2008 and also the SLP No. 8373-8375/2008 filed with the Hon'ble Supreme Court of India that 3 (three) members of the Administrative Council and Board of Directors who were debarred from participating in the Administrative Council and Board of Directors by the Hon'ble Gauhati High Court by its interim order dated 15.10.07 and final judgment dated 01.02. 0 8 were not defaulters despite of having their outstanding dues/NPAs towards the Bank. The above 2 (two) members requested the Hon'ble Chairman to take action as deemed proper against the Officer.
Resolution No. 36(6)
Resolved that the Managing Director would issue Show Cause Notice to Sri Kina Ram Mech, the then General Manager (Admn.) as per provision of Bank's Rule as to why he had submitted affidavits before Hon'ble Courts that the 3 (three) debarred members (Respondent Nos. 9, 12, 15 in WP (C) No. 5508) were not defaulters in spite of having their outstanding dues towards the Bank. The reply of Sri Mech, General Manager should be placed in the Board for perusal and decision of the members.
There being no further agenda for discussion, the meeting ended at 4.00 P.M. with vote of thanks from the chair.
3. While Mr. S. Kataki, learned Counsel for the Petitioner submits that it was never the intention of the Board of Directors to take recourse to the provisions of Rule 46(c) of the aforesaid rules and issue the charge sheet to the Petitioner deeming him to be in service inspite of his superannuation, Mr. P.N. Goswami, learned Counsel representing the Respondent bank, submits that the aforesaid resolution of the Board does not carry any other meaning other than what the Managing Director of the bank has interpreted with his consequential action of issuance of Annexure-A & B impugned superannuation notice and the charge sheet.
4. The Petitioner questioned the legality and validity of the impugned superannuation notice and the charge sheet aforementioned by his Annexure-C representation dated 6.4.2009. Upon a reference to the aforesaid resolution of the BOD, he contended that there being no decision to initiate department
