E.S. Da Silva, J.
1. The petitioner, who was working as an Accountant during the relevant time in the respondent No. 1 Co-operative Bank, has preferred the instant writ petition, claiming the relief that the order of his dismissal dated 27-6-1989 should be set aside and he should be directed to be reinstated in service with full back wages and continuity of service.
2. Briefly, the facts are that the petitioner was appointed originally as a Clerk in the respondent No. 1 Co-operative Bank on 29-4-1971. In 1979 he was promoted as an Accountant in the said Bank, in which post he continued to work till he was dismissed from service. According to the petitioner, there were certain allegations of misconduct against him, for which reason he was orally asked to resign by the authorities of the respondent No. 1 Bank. Accordingly, he submitted his letter of resignation on 4-12-1986, which he thereafter withdrew on 10-9-1987. But, inspite of his withdrawal, the said letter of resignation was accepted by the Managing Director on 17-1-1987, with effect from 4-12-1986 from which date, according to the said letter dated 17-1-1987, he was to stand relieved. However, the respondent No. 1 reconsidered the question of acceptance of his resignation in its letter dated 28-1-1987 by which the petitioner was informed that the management had treated the aforesaid letter dated 17-1-1987 accepting his resignation as cancelled on sympathetic grounds. The petitioner was by the above letter dated 28-1-1987 permitted to join his duties as Accountant in Ponda Branch with immediate effect.
3. The petitioner was also given a caution in the above letter dated 28-1-1987 that he should be very particular in future in discharging his duties scrupulously. However, according to the petitioner when he went to join his duties, the Branch Manager, Ponda Branch, Goa did not allow him to join his duties at the said Branch. The petitioner, therefore, made a grievance about the same to the Managing Director of the respondent No. 1 by his letter dated 31-1-1987. The petitioner was thereafter transferred and posted in the Head Office with immediate effect by the letter of the Managing Director of the respondent No. 1 dated 4-2-1987 which issued in partial modification of his aforesaid earlier letter dated 28-1-1987, by which he was permitted to join his duties as Accountant at Ponda Branch with immediate effect. It was, however, made clear in the said letter dated 4-2-1987 that the petitioner was not entitled for benefits like joining period, T.A., D.A., etc., which were otherwise available in the case of regular transfers. The petitioner resumed his duties in the Head Office thereafter.
4. The petitioner was then served with a charge-sheet on 28-5-1987 containing charges of misconducts and the allegations upon which they were based. The charges of misconduct fell under Clauses (c) and (d) under the head 'Major Misconducts' in Clause 24 of the Settlement arrived at between the respondent No. 1 with the employees Union, as is evidenced by its copy placed on record. It appears that the original Settlement about the conditions of service of the employees has been arrived at in 1979, but after the expiry of the period of the said Settlement and in fact, of every Settlement thereafter a fresh Settlement upon the same lines has been arrived at between the parties. It is, therefore, not in dispute that although the copy of the Settlement which is placed on record before us is of the Settlement arrived at on 22-2-1988, the conditions of service as regards disciplinary matters were the same which were applicable prior to it when the charge-sheet was given to the petitioner. It is further not in dispute that the above Settlement is arrived at under and in accordance with the provisions of the Industrial Disputes Act, 1947, and the rules framed thereunder.
5. After the charge-sheet was served upon the petitioner, he sent his reply to the same to the respondent No. 1 by his letter dated 29-6-1987, in which apart from the explanation about the charges against him, the petitioner also stated that already for the irregularities pointed out in the charge-sheet dated 28-5-1987, the petitioner had been warned by the order of the respondent No. 1 dated 28-1-1987. Punishing him again for the same irregularities would according to the petitioner, amount to double punishment to the petitioner. The petitioner also pointed out that he had not misappropriated any amount causing any financial loss to the respondent No. 1 Bank and that he had not acted with any mala fide intention in performing his duties.
6. After the explanation of the petitioner was received, the Managing Director of the respondent No. 1, by his letter dated 15-1-1988 appointed one Shri M.N. Bhartiya, Director of Administration, Kala Academy as an Inquiry Officer to inquire into the charges against the petitioner. By the same order, he appointed the then Administrative Officer Shri P.S. Vernekar i.e. the respondent No. 2 as a Presenting Officer on behalf of the Management in the Departmental Enquiry against the petitioner. The Departmental Enquiry in the instant case was thereafter conducted by the aforesaid Shri M.N. Bhartiya, Director of Administration, Kala Academy. It appears that after the above Enquiry Officer was appointed, the petitioner sought adjournments before him on the ground that he was ill, which adjournments were granted to him. The petitioner, however, by his letter dated 4-4-1988 again submitted before the Enquiry Officer that in regard to the irregularities which were the subject-matter of the charge-sheet in the instant case, there had already been a punishment imposed upon him by issuing to him a warning and, therefore, the present enquiry for the same charges was unwarranted. He, however, made it clear that he would participate in the enquiry without prejudice to his rights to challenge the same at the appropriate stage.
7. It is material to state that during the pendency of the aforesaid Departmental Enquiry against the petitioner, but before the respondent No. 2 Shri P.S. Vernekar, the Presenting Officer was examined as a witness in the said inquiry on 6-1-1989, the respondent No. 2 was authorised and was entrusted with the functions, duties and powers of the Chief Executive of the respondent No. 1 Bank by the resolution of its Board of Directors passed in its meeting held on 18-10-1988 in the exercise of its power under section 44 of the Act as is clear from the order dated 25-10-1988 issued by the Chairman of the Board of Directors of the Bank. It is further clear from the said order dated 25-10-1988 that the respondent No. 2 was to continue as the Acting Chief Executive till the permanent appointment was made in the said post. It is material to see that as an Acting Chief Executive of the respondent No. 1 Bank, the respondent No. 2 was the disciplinary Authority also and that he had actually exercised the power of a Disciplinary Authority in the instant case by issuing the show-cause notice against the proposed punishment and by dismissing the petitioner for the charges levelled against him.
8. Continuing the narration about the proceedings in the Departmental Enquiry against the petitioner, it may be seen that the Presenting Officer Shri Vernekar i.e. the respondent No. 2 examined himself as a witness on 6-1-1989. The management of the respondent No. 1 Bank also examined other witnesses, viz., Shri Shashikant Sawaikar, Clerk-cum-Cashier in the Ponda Branch, Mrs. Prafulla Bhadke, Clerk in the Ponda Branch and Shri D.P. Bharve, Cashier in the Ponda Branch in order to prove the charges of misconduct against the petitioner. In defence, the petitioner examined himself on his behalf on 3-4-1989. Prior to that, as directed by the Enquiry Officer on 16-1-1989, the petitioner had on 27-1-1989 submitted to him his written brief regarding the line of his defence. In the above written brief about his defence, he had inter alia emphasised again that in view of the caution given to him, the management had condoned the lapse or misconduct, if any, on his part by accepting the explanation and by administering warning to him. Further, he submitted that he suffered punishment, because he was transferred from Ponda Branch to Head Office by way of punishment for the same misconduct and was deprived of the joining period. T.A.D.A., etc. which benefits were otherwise available in case of regular transfers. He then submitted that his annual increments for two years i.e. 1986-87 were also with-held by the management, which, however, were subsequently released by the order dated 30-6-1988 after considering this representation dated 27-1-1988 in that regard. It may then be seen that after the evidence of both sides was over, the Presenting Officer submitted his written arguments before the Enquiry Officer i.e. the respondent No. 2 on 7-4-1989. In reply, the petitioner also submitted his written arguments to the Enquiry Officer on 18-4-1989.
9. The Enquiry Officer thereafter submitted his report of the enquiry against the petitioner on 6-6-1989 to the respondent No. 1. He held that the charges against the petitioner were established beyond doubt, by the management in the enquiry conducted by him. The respondent No. 2 thereafter issued a show-cause notice on 14-6-1989 to the petitioner against the proposed punishment enclosing therewith the report of the Enquiry Officer, but it appears that the same was not received by the petitioner as he was not in his house, as is clear from the postal endorsements or remarks upon the registered A.D. by which the show-cause notice and the enquiry report were sent to the petitioner. The petitioner was thereafter dismissed from service by the order of the respondent No. 2 dated 26-7-1989 with immediate effect. The petitioner by his letters dated 4-7-1989 and 17-7-1989 demanded the inquiry report which was sent to him by the respondent No. 1 with its covering letter dated 1-8-1989. Being aggrieved, the petitioner has challenged the order of his dismissal dated 26-7-1989 by filing the instant writ petition in this Court.
10. The learned Counsel for the petitioner has raised the following contentions in order to challenge the order of dismissal of the petitioner dated 27-6-1989:---
(i) Since the petitioner was previously imposed a punishment of the same misconduct, it is not open to the management to impose again a punishment of dismissal for the same misconduct. At any rate, the management must be deemed to have condoned the misconduct after issuing the warning for the same.
(ii) The appointment of the Enquiry Officer and the Presenting Officer by the Office order dated 15-1-1988 as made by the then Managing Director in his capacity as a disciplinary authority is ab-initio void and illegal since the Managing Director was at that time functus officio and could not exercise such powers which could only be exercised by the Chief Executive only since the respondent No. 1 Co-operative Bank became Multi State Co-operative Society with effect from 30-5-1987 in accordance with the provisions of the Multi State Co-operative Societies Act, 1984, (for short, the Act). The proceedings conducted by the Enquiry Officer, and the Presenting Officer are, therefore, illegal and without jurisdiction.
(iii) Since the Managing Director had no jurisdiction during the material time, the charge-sheet issued by him is itself bad and therefore, all proceedings pursuant to the said charge-sheet are vitiated.
(iv) The Departmental Enquiry is contrary to the principles of natural justice and it suffers from the bias of the Enquiry Officer as well as of the Disciplinary Authority who was besides being the Presenting Officer, was a witness also in the instant Departmental Enquiry.
(v) No show-cause notice against the proposed punishment was given by the management nor the copy of the report of enquiry supplied to the petitioner before the order of dismissal was issued which is, therefore, illegal and void.
11. Apart from contesting the above contentions raised on behalf of the petitioners the learned Counsel appearing for the respondents has raised a preliminary objection to the maintainability of the writ petition and to the entitlement of the petitioner to get in the instant writ petition the reliefs claimed by him. The learned Counsel for the respondents has urged before us that the respondent No. 1 Bank is not `State' within the meaning of Article 12 of the Constitution of India and that no writ can be issued against the respondent No. 1 which is a private body not amenable to the writ jurisdiction of this Court under Article 226 of the constitution of India. Since the objection raised on behalf of the respondents goes to the root of the matter to entertain the instant writ petition and to grant relief claimed by the petitioner in the instant writ petition, we shall first consider the preliminary objection raised on behalf of the respondents.
12. In order to appreciate the rival submissions upon the preliminary objection raised on behalf of the respondents, it is necessary and would be useful to refer to certain facts and the relevant provisions of the Act, the rules framed thereunder and the bye-laws of the respondent No. 1 society through which both parties have taken us to advance their submissions. It may be seen that the respondent No. 1 society is a Co-operative Society doing banking business on co-operative principles. It has also the other objects as given in its bye-laws. The respondent No. 1 society was registered as a Co-operative Society under the Maharashtra Co-operative Societies Act, 1960 as applicable to the then Union Territory of Goa, Daman and Diu. As per its bye-law No. 1, its area of operation extended to the whole of the Union Territory of Goa, Daman and Diu. On 30-5-1987 the Statehood was conferred upon Goa which became an independent State within the Union of India from the said date. The territories of Daman and Diu, however, remained Union Territories. Since the area of operation of the respondent No. 1 thereafter extended beyond the State of Goa as the territories of Daman and Diu were also under its area of operation, the respondent No. 1 Co-operative Society became a Multi State Co-operative Society within the meaning of section 2 of the Multi State Co-operative Societies Act, 1984 (hereinafter referred to as the Act) which came into force with effect from 16-9-1985 by the notification of the Central Government issued in that regard after having received the ascent of the President on 18-8-1984.
13. It may, however, be seen that although the Act came into force with effect from 16-9-1985 it was not applicable to the respondent No. 1 Society at that time because Goa attained State hood only on 30-5-1987 whereafter only it became applicable to it by virtue of the provisions of section 95 of the Act which is a deeming provision in relation to Co-operative Societies functioning and having objects confined to one State prior to re-organisation of States but having the area of operation in more than one State due to re-organisation of States. It may be seen that section 95 of the Act provides that such a Co-operative Society having new area of operation in more than one State shall be deemed to be a Multi State Co-operative Society registered under the corresponding provisions of the Act and the bye-laws of such societies shall, in so far as they are not inconsistent with the provisions of the Act, continue in force until altered or rescinded. The respondent No. 1 Co-operative Society, therefore, became a Multi State Co-operative Society on and from 30-5-1987 within the meaning of the definition of the said expression under section 3(k) read with section 95 of the Act.
14. Since the respondent No. 1 has become a Multi State Co-operative Society and is governed by the provisions of the Act with effect from 30-5-1987, the submission on behalf of the petitioner is that it is an instrumentality of the State looking to the provisions of the Act by which it is governed, the rules framed thereunder and its Bye-laws as well as in view of the control and supervision exercised by the Reserve Bank of India under the Banking Regulation Act, 1949 as it thus satisfies all the relevant test which are evolved by the Supreme Court in its judgments to determine the question whether a particular body is a public authority or an instrumentality of the State within the meaning of Article 12 of the Constitution. In fact, according to the learned Counsel for the petitioner, the matter stands concluded by the judgment of the learned Single Judge of this Court in the case of Padubidri Bhat v. Shamrao Vithal Co-op. Bank & ors., : (1989)IILLJ377Bom , in which the learned Single Judge of this Court had in the case of a Co-operative Bank which was a Multi State Co-operative Society held that it was an instrumentality of the State within the meaning of Article 12 of the Constitution. Heavy reliance is, therefore, placed on behalf of the petitioner upon the above judgment which, according to the learned Counsel for the petitioner, has exhaustively dealt with the question after considering the relevant provisions of the Act as also the Banking Regulations Act, 1949 and the relevant tests evolved by the Supreme Court to determine whether a particular body is an instrumentality of the State within the meaning of Article 12 of the Constitution or not.
15. The learned Counsel appearing for the respondents has challenged before us the correctness of the above judgment of the learned Single Judge of this Court. In his exhaustive submissions, apart from referring us to the relevant tests laid down by the Supreme Court in its judgments and in particular in the off quoted judgment in Ajay Hasia v. Khalid Mujib Shehravardi, : (1981)ILLJ103SC , he has also relied upon the view taken by the other High Courts in regard to such Co-operative Societies. In particular, he has referred us to the Full Bench decision of the Andhra Pradesh High Court in Sri Konassema Co-operative Central Bank Ltd. v. N. Seetharama A.I.R. 1990 A.P. 171 : 1990 Bank.J. 687; Full Bench Decision of the Orissa High Court in Banabihari Tripathy v. Registrar of Co-operative Societies & anr. : AIR1989Ori31 ; Management of Ramoshidre Machr v. P.O., Labour Court & anr. 1985 L.I.C. 1806 ; Ajmersingh v. Registrar Co-operative Societies, ; Satishkumar v. Punjab State Co-operative Bank Ltd. ; D.C. Kapoor v. A.K. Aggrawal & ors. 1989 L.I.C. 940 ; Muktaruddin Ahmad Khan & ors. v. Midnapore Co-op. Land Development Bank Ltd. & ors., 1988 C.T.J. 443 and Ramu Ram Sahu & ors. v. National Co-op. consumers' Federation & ors 1990 C.T.J. 207.
16. It is, however, not necessary for us to consider in the instant writ petition the question whether the respondent No. 1 Bank is `State' within the meaning of Article 12 of the Constitution, because in our view even otherwise, the respondent No. 1 Bank, as we shall presently show, is amenable to writ jurisdiction of this Court under Article 226 of the Constitution so far as the relief claimed by the petitioner in the instant case is concerned.
17. As to the law on the question of the issue of a writ of mandamus under Article 226 of the Constitution, the same has been considered by the Supreme Court in its recent decision in the case of Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & ors. v. V.R. Rudani & ors., : (1989)IILLJ324SC . The appellant in the said case was a Public Trust and was running a Science College at Ahmedabad affiliated to Gujarat University. After the State Government and the University took the decision to implement the revised UGC pay-scales in respect of the teachers of the University and its affiliated colleges, the University directed the appellant Trust to implement the said decision which is did not, but on the contrary it closed its college itself surrendering its affiliation to the University. The teachers of the college moved the High Court for a writ of mandamus claiming the terminal benefits as well as the implementation of the revised pay-scales recommended by the UGC in respect of the college teachers. The appellant Trust raised an objection in the writ petition before the High Court that since the Trust was not a statutory body, it was not subject to writ jurisdiction of the High Court under Article 226 of the Constitution. While considering the above objection, the Supreme Court has observed that if the rights are purely of a private character, no mandamus can issue. It has also observed that if the management of the college is purely a private body with no public duty, mandamus cannot lie. According to it, these are the two exceptions to a writ of mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied.
17A. It is true that the Supreme Court, as is clear from para 13 of the judgment, was not called upon to consider the question whether the contract of personal service can be specifically enforced as the question which was before it for consideration was whether the appellant Trust can be compelled to pay its teachers terminal benefits and the revised pay scales recommended by the UGC for the college teachers. However, the principles considered in the said judgment are general principles in regard to the power of the High Court to issue a writ of mandamus or any other appropriate writ in the nature of mandamus under Article 226 of the Constitution and therefore, assistance can be drawn from the principles discussed in the said judgment. As regards the functional character of the appellant trust in the said case the Supreme Court has observed in para 14 of its judgment that the appellant Trust was managing an affiliated college to which the Government aid was given and that the Government aided educational institutes like the Government institutions discharged public functions by imparting education to the students. It also held that the affiliated colleges were subject to the rules and regulations of the University to which they were affiliated and their activities were closely supervised by the University authorities. The Supreme Court has therefore, held that the employment in such institutions was not devoid of any public character and the service conditions of the academic-staff were, therefore, not purely of a private character. Besides this, according to it, had super-added protection by the University decisions creating legal right-duty relationship between the staff and the management and therefore, mandamus could not be refused to the aggrieved party.
18. It is then observed by the Supreme Court in its above judgment that the law relating to mandamus has made the most spectacular advance, and Article 226 confers wide powers on the High Court to issue writs in the nature of prerogative writs. It is observed that this is a striking departure from the English law. It is pointed out that under Article 226, a writ can be issued to 'any person or authority' and 'for enforcement of any of the fundamental rights or for any other purpose', used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. It is held that Article 12 is relevant only for the purpose of enforcement of the fundamental rights as well as non-fundamental rights. It is accordingly held in the above judgment that the words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and the instrumentalities of the State as they may cover any other person or body performing public duty. According to the Supreme Court, what is relevant is the nature of the duty imposed on the body and not the form of the body concerned and that the duty must be judged in the light of positive obligation owed by the person or authority to the effected party, no matter by what means the duty is imposed. The Supreme Court thus held that if a positive obligation exists, mandamus cannot be denied. (See paras 18 & 19).
19. After referring to the case of Praga Tools Corporation v. Shri C.A. Imanual : (1969)IILLJ479SC , in which also it is held that if a public or statutory duty is imposed upon a private body, a mandamus would lie against it to enforce such a duty, the Supreme Court has pointed out in para 21 of its judgment cited supra that a mandamus cannot be denied on the ground that the duty to be imposed is not imposed by the Statute. Referring to Professor De Smith's book on Judicial Review of Administrative Act (4th edn. 540), it has observed that to be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute and it is sufficient for the duty to have been imposed by character, common law, custom or even contract . It has further observed that the judicial control over the fast expanding mass of bodies affecting the rights of the people should not be put into water-tight compartment, but it should remain flexible to meet the requirements of variable circumstances. Mandamus in its view, is a very wide remedy which must be easily available 'to reach injustice where it is found'. It is observed that technicalities should not come in the way of granting that relief under Article 226 of the Constitution. It is, therefore, clear that a writ of mandamus can lie even against a private body if the duty imposed upon it is a statutory duty or a public which may be imposed by charter, common law, custom or even contract. The Supreme Court has, therefore, held in the said case that a writ of mandamus would lie against the appellant Trust under Article 226 of the Constitution to direct it to implement the revised pay-scales recommended by the U.G.C. for the college teachers.
20. The learned Counsel for the respondents has relied upon a decision of the Court of Appeal in R. v. West Berkshire Health Authority, ex-parte Walsh 1984 (3) All ELR 425, in support of his submission that there was no public law element in the dismissal of the petitioner from service and therefore, a writ of mandamus would not lie in this matter. It was held in the above case that the question whether a dismissal from employment by a public authority was subject to public law remedies depended on whether there were special statutory restrictions on dismissal which underpinned the employee's position, and not on the fact of employment by a public authority per se or the employee's seniority or the interest of the public in the functioning of the authority. It was held that where the authority was required by statute to contract with its employees on specified terms with a view to the employees acquiring private rights, a breach of that contract was not a matter of public law and did not give rise to any administrative law remedies and it was only if the authority failed or refused to contract on the specified terms that the employee had public law rights to compel the authority to comply with its statutory obligations. Further, according to the said judgment, the fact that the applicant was employed on conditions of service which were negotiated by a negotiating body, were approved by the Secretary of State and were imposed on the applicant and the authority by 1974 Regulations was not sufficient to give the applicant public law remedies in respect of his dismissal. It was ultimately held that since the applicant was engaged on the proper conditions of service and his complaint was that he had been dismissed in breach of those conditions, his contract was an ordinary master and servant contract of employment and the appropriate remedy was the private law remedy of a complaint to an industrial tribunal.
21. As regards the question of drawing assistance from English decisions, apart from the judgment of the Supreme Court in Rudani's case cited supra, it has also been held by the Supreme Court in the case of L.I.C. v. Escorts Ltd. & ors., : 1986(8)ECC189 , where the above English decision of the Court of Appeal was inter-alia expressly relied upon that it desired to warn itself against readily referring to English cases on questions of Constitutional law, Administrative Law and Public Law as the law in India in these branches had forged ahead of the law in England, because of our liberal and wider Constitutional provisions in regard to judicial review uninhibited by the technical rules which have hampered the development of the English Law. (See para 101). The Supreme Court has, however, observed in Escort's case that there would be difficulty is demarcating the frontier between the public law domain and the private law field. According to it, it is impossible to draw the line with precision and the question will have to be decided in each case with reference to the particular action, the activity in which the State or the instrumentality, of the State is engaged when performing the action, the public law or private law character of action, and a host of other relevant circumstances. It is made clear that in Escort's case the question of dichotomy between the public law domain and the private law field came to be considered in the context of Article 14 of the Constitution as the question was, whether the State action in corporate field of purchasing shares of a company was like ordinary share holder and was thus not inhibited by Article 14 of the Constitution.
22. It is difficult to sec how in the facts obtaining in the case of R.v. Berkeshire Health Authorities case cited supra under the conditions of Indian Law developed in the light of its constitutional provisions the action of dismissal of a public authority would not be amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. Nonetheless, we shall have to consider the question of amenability of action of the respondent No. 1 in the instant case of dismissing the petitioner from service to the writ jurisdiction of this Court under Article. 226 of the Constitution on the footing that the said action is not to be tested on the touch-stone of infringement of a fundamental right under Part-III of the Constitution.
23. In this regard, we usefully refer to the decision of this Court in the case of Pandurang Hindurao Patil v. State of Maharashtra & ors.1983 M.L..J. 1881on the question when a writ of mandamus can lie against a private body or a person. In the above case the Returning Officer had rejected nomination papers with respect to the elections to the Managing Committee to be constituted under section 73 of the Maharashtra State Co-operative Societies Act, 1960 and the question was whether he was amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. This Court has after referring to the well settled law that a writ of mandamus can be issued to the non-statutory authorities to secure performance of a public or a statutory duty, held that section 73 of the aforesaid Act requires the constitution of a Managing Committee in accordance with the Act, the rules and the bye-laws and therefore, any decision which is not in conformity with the bye-laws would result in effecting the constitution of the Managing Committee and would therefore, amount to an infraction or a violation of the provisions of section 73 of the aforesaid Act. This Court, therefore, held that if the order of the Returning Officer has the effect of the committee being constituted contrary to the mandate of section 73 of the aforesaid Act which provides that the constitution should be in accordance with the aforesaid Act, the rules and the bye-laws, the matter can be brought before the High Court and the High Court can issue a writ of mandamus to see that the constitution of a Managing Committee is in accordance with the provisions of the aforesaid Act, the Rules and the Bye-laws also notwithstanding the fact that the bye-laws as such are non-statutory or contractual.
24. The above judgment of this Court is of great relevance when we construe the relevant provisions of the Act conferring powers and duties upon the Board of Directors and the Chief Executive of a Multi State Co-operative Society. On perusal of the provisions of the Act, the rules and the bye-laws of the respondent No.1 Co-operative Bank as also the provisions of the Banking Regulation Act, 1949, it is clear that the respondent No. 1 Co-operative Bank is not purely a private body, whether it is 'State' or not within the Article 12 of the Constitution may be a different thing, and that its principal body and its principal officer are statutory functionaries under the Act. It is well settled that the statutory functionaries under any statute are amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India in regard to the powers and duties imposed upon them under the statute. See the judgment of this Court in the case of Shrikant v. G.S. College of Commerce, Wardha 1979 M.L.J. 22. We may also usefully refer to the judgment of the Kerala High Court in the case of Narayan Menon v. Manager, P. V.S. High School 1983 K.L.T. 896. in which it is held that the Manager of a School who has been made under section 7 of the Keral Education Act responsible for the conduct of the school in accordance with the provisions of the said Act is a statutory functionary and is hence amenable to the writ jurisdiction of the High Court under Article 226 of Constitution so as to compel him to perform his functions in conformity with the provisions of the said Act.
25. In appreciating the contention whether the respondent No. 1 Co-operative Bank is purely a private body or not, we shall first refer to the Bye-law No. 2 of the respondent No. 1 Co-operative Bank relating to its objects. The said Bye-law No. 2 shows that all its activities are not strictly restricted to its members only. In fact, as a co-operative Bank its principal business is banking business which is open to all including those who are not its members. Perusal of Clauses XI to XVII of the Bye-law No. 2 would show that it carries on the same general business which any other Bank usually carries on. For instance, it offers credit to the non-members and offers loans to its customers/depositors. (See section 63 of the Act.) Clause XXII of Bye-law No. 2 enables it to do all such other things as are incidental and conducive to the promotion or advancement of the business of the Bank. Clause (xviii) of the Bye-law No. 2 which is material shows that the respondent No. 1 Co-operative Bank has to do any other form of business which the Central or the State Government may specify as a form of business in which it is lawful for banking institution to engage. The above object clearly indicates its freedom to carry on business according to its choice is curtailed, because it has to carry on a business which the Central or the State Government may entrust to it and which a banking institution can lawfully undertake. This is so because under the Act the Central or the State Government can hold shares in the Multi State Co-operative Society which can also receive financial assistance from them as we shall hereinafter show.
26. Turning to the provisions of the Act, it is clear from section 7(i)(c) of the Act that when there is one Multi State Co-operative Society, no other Multi State Co-operative Society having similar area of operation and identical objects can be registered by the Central Registrar which thus gives to the respondent No. 1 Co-operative Society a certain degree of monopolistic character in regard to its business in the sense that there cannot be any Multi-State Co-operative Bank in its inter-State area of operation.
27. We shall now see the provisions of the Act which have made serious inroads upon the internal autonomy of the Multi State Co-operative Societies registered under the Act. Section 19(1) of the Act lays down that except the categories of persons enumerated thereunder, no other person can become the member of the Multi State Co-operative Society. Categories (c), (d), (e), (f) and (g) of section 19(1) of the Act are the Public Authorities viz. the Central Government, a State Government, the National Co-operative Development Corporation established under the National Co-operative Development Corporation Act, 1962; any other corporation owned or controlled by Government, and any Government Company as defined in section 617 of the Companies Act, 1956. Section 19(6) of the Act empowers the Central Government to prescribe disqualifications for any person and class of persons from being admitted or for continuing as members of a Multi-State Co-operative Society.
28. Section 24 places restrictions on holding of shares by the members. It lays down that no member, other than any of the authorities referred to in clauses (e) to (g) of sub-section (1) of section 19 or a Multi-State Co-operative Society or a co-operative society shall hold more than such portion of the total share capital of the society (in no case exceeding one fifty thereof) as may be prescribed. Rule 16 of the Multi-State Co-operative Societies (registration, Membership, Direction and Management; Settlement of Disputes, Appeal and Revision) Rules, 1985 shows that no member referred to in Clauses (a) and (b) i.e. who are private share holders shall hold more than one fifth of the share capital of the Multi-State Co-operative Society or have or claim any interest in the shares of the Multi-State Co-operative Society exceeding ten thousand rupees, whichever is less. It is thus clear that private or individual share-holding is restricted under section 24 of the Act.
28A. It is then clear from Bye-law No. 3 that out of the total authorised share capital of Rs. 1,25,00,000/- the individual share-holders who belong to class 'C' can hold 15,000 shares in the denomination of Rs. 100/- each only which means that individual share-holding in the respondent No. 1 Bank is Rs. 15,00,000/-. The State Government and the Central Government who belong to class 'B' can have 5000 shares of Rs. 1000/- each. Thus the total investment of the Government in the share capital is Rs. 50 lacs. The rest of the shares are 60,000 in the denomination of Rs. 100/- each which are class 'A' shares which can be allotted to the Multi State or National Co-operative Societies registered under the Act. It is not necessary for us to consider whether the above Bye-law No. 3 is in consonance with section 24 of the Act and Rule 16 referred to above since our purpose is only to show that the respondent No. 1 Co-operative Bank is not purely a private body.
29. It is then necessary to sec the provisions of the Act having bearing upon the Finances, the properties and funds of the Multi-State Co-operative Society. Section 59 of the Act deals with the question of giving Government aid to the Multi-State Co-operative Society. It provides for subscribing to the share capital of the Society, giving of loans or making advances to a Multi-State Co-operative Society, guaranteeing the repayment of principal and payment of interest on debentures issued by a Multi-State Co-operative Society; guaranteeing the repayment of share capital of a Multi-State Co-operative Society and dividends thereon at such rates as may be specified by the Central Government or the State Government; guaranteeing the repayment of principal and payment of interest on loans and advances to a Multi-State Co-operative Society and giving of financial assistance in any other form, including subsidies to any Multi-State Co-operative Society. Sections 50 to 65 of the Act in Chapter VI provides for restrictions upon the disposal of net profits, investment of funds by a Multi-State Co-operative Society, restrictions on loans, restrictions on borrowing and restrictions on other transactions with the non-members.
30. The learned Counsel for the respondents has urged before us that ultimately the surplus or savings are meant for the benefit of the Co-operative society and its members and are to be utilised on the basis of Co-operative principles contained in para 3 of the First Schedule to the Act. In our view, the members of the Multi-State Co-operative Society include the public authorities and the co-operative principles in para 3 of the First Schedule cannot over-ride but are subject to section 61 of the Act relating to disposal of net profits. At any rate, when they sub-serve the common cause of the members as a class, they do not detract from the concept of the Multi-State Co-operative Society being not purely a private body.
31. We now proceed to consider the provisions which provide for same control or say to the Government in the management of the affairs of the Multi-State Co-operative Society. In view of the investment of the Central Government or the State Government in the share capital of the Multi-State Co-operative Society or the financial guarantees given by them as provided in section 41 of the Act, a right is conferred upon them under section 41 of the Act to nominate on the Board of Directors of the Multi-State Co-operative Society such number of members as may be prescribed. Rule 31 of the above referred rules provides that the State Government or the Central Government can nominate on the board 3 or 1/3 rd of the total members thereof whichever is less. Bye-law No. 3 of the bye-laws of the respondent No. 1 Co-operative Society under which the Multi-State Co-operative Society can, as provided in sub-section (2) of section 41 of the Act, nominate persons in excess of the limit prescribed under sub-section (1), however, shows that two Directors can be nominated by the Government of Goa, Daman and Diu. How far the said Bye-law is consistent with Rule 31 which enables the Government to appoint 3 directors need not be gone into in this writ petition.
32. The learned Counsel for the respondents has urged before us that each member of the board of directors can have one vote only and therefore, no control can be exercised by the Government which has no majority the Board of Directors. He has also drawn our attention to the co-operative principles in paras 5, 7 and 8 of the First Schedule to the Act which refer to the democratic working of the Society and its accountability to its members respectively. It is difficult to see how the above submission can show that the respondent No. 1 Co-operative Bank is not purely a private body. On the other hand, the principles of democratic working and accountability to the members show that the Government who is the member of the respondent No. 1 Society and who can nominate its directors upon it has and must have say in its management although its directors may not have majority in the Board of Directors. Participation of the Government nominee in the management affairs of the respondent No. 1 Society would show that it is not purely a private body.
33. The most material provision in regard to the control exercised by the Government is section 47 of the Act under which the Central Government is empowered to give directions in the public interest to the Multi-State Co-operative Society. It provides that if the Central Government is satisfied that in the public interest or for the purpose of securing proper implementation of co-operative production and other developmental programmes approved or undertaken by the Central Government or to secure proper management of the business of the Multi-State Co-operative Societies generally or for preventing the affairs of the Multi-State Co-operative Society being conducted in a manner detrimental to the interests of the members, any depositors or creditors thereof, it is necessary to issue directions to any Multi-State Co-operative Society generally or to any class of Multi-State Co-operative Societies or to a Multi-State Co-operative Society in particular, the Central Government may issue directions to them or to it, from time to time, and all such Multi-State Co-operative Societies or the society concerned, as the case may be, shall be bound to comply with such directions.
34. Besides the control exercised by the Central Government by issuing directions to the Multi-State Co-operative Society in public interest, it may be seen that being a banking institution, the respondent No. 1 Co-operative Bank is subject to the supervision and control of the Reserve Bank of India as is provided under the provisions of the Banking Regulations Act, 1949. By virtue of section 56 of the said Act, the provisions of the said Act are made applicable to the co-operative Banks with the modifications mentioned therein. It is pertinent to see that section 5-A as substituted by section 56 of the Act provides that the provisions of the said Act shall have effect, notwithstanding anything to the contrary contained in the bye- laws of a co-operative society, or in any agreement executed by it, or in any resolution passed by it in its general meeting or by its Board of Directors or other body entrusted with the management of its affairs, whether the same be registered, executed or passed, as the case may be, before or after the commencement of the Banking Laws (Applicable to Co-operative Societies) Act, 1956. It is not necessary to go into the details of the provisions in this regard. Suffice it to say that the provisions referred to above do not show that the respondent No. 1 Multi-State Co-operative Bank is purely a private body.
35. It is thus clear from the provisions of the Act, the rules, the bye-laws of the respondent No. 1 Co-operative Bank, and the provisions of the Banking Regulations Act, 1949, referred to above that the respondent No. 1 Co-operative Bank is not purely a private body. What is, however, pertinent to be seen from the point of view of the amenability of the action of the respondent No. 2 in dismissing the petitioner from service to the writ jurisdiction of this Court under Article 226 is the provisions of the Act relating to constitution, powers and duties of the principal functionaries of a Multi-State Co-operative Society like the respondent No. 1 upon whom the management of the society is bestowed. It may be seen that the expression 'Board' is defined in section 3(a) of the Act to mean the Board of Directors or the governing body of a Multi-State Co-operative Society by whatever name called, to which the Direction and control of management of the affairs of the society is entrusted. Section 32 of the Act provides that subject to the provisions of the Act and the rules framed thereunder, there shall be a Board of directors for every Multi-State Co-operative Society consisting of such number of members as may be provided for under the bye-laws. As regards the respondent No. 1 Co-operative Bank, bye-law No. 36 provides for composition of its Board of Directors. Section 41, as already pointed out, provides for nominees of the State Government or the Central Government on the Board of Directors.
36. What is, however, important from our point of view is section 42 relating to powers and functions of the Board of Directors. Sub-section (1) of section 42 provides that the Board may exercise all such powers as may be necessary or expedient for the purpose of carrying out its functions under the Act (under-lining ours). Sub-section (2) of section 42, without prejudice to the generality of the power conferred under sub-section (1) provides for specific powers to be exercised by the Board. Clause (d) and Clause (e) of sub-section (2) of section 42 are relevant for us as they deal with the question of appointment of employees of the Multi-State Co-operative Society and their conditions of service including disciplinary action to be taken against them.
37. Clause (d) of sub-section (2) of section 42 empowers the Board of Directors to appoint a Chief Executive and such other employees of the society (out of the list of persons referred to in section 50) as are not required to be appointed by the Chief Executive. Section 50 would show that it refers to the list of employees of the National Co-operative Society. Clause (c) of section 42 then enables the Board to make provisions for regulating the appointment of employees of the Multi-State Co-operative Society and the scales of pay, allowances and other conditions of service including the disciplinary action against such employees. There is thus a statutory power vested in the Board to lay down conditions of service of the employees of the Multi-State Co-operative Society and when such conditions of service are laid down pursuant to the power under Clause (e) of sub-section (2) of section 42 of the Act, such conditions of service would have statutory force, because the source of their power is statutory.
38. The next authority in whom the powers of management vest is the Chief Executive of the Multi-State Co-operative Society who is the principal officer/functionary of the Multi-Slate Co-operative Society. The expression 'Chief Executive' is defined in section 3(d) to mean a Chief Executive of the Multi State Co-operative Society appointed under section 44 of the Act. Section 44(1) provides that there shall be a Chief Executive by whatever designation called of every Multi-State Co-operative Society to be appointed by the Board and he shall be a full-time employee of the Multi-State Co-operative Society. As provided in sub-section (2) of section 44 of the Act he is an ex-officio member of the Board, the Executive Committee and such other Committee or Sub-Committees as may be constituted under sub-section (1) of section 46 of the Act.
39. Section 45 of the Act is a crucial provision for the purpose of this petition. It lay's down the powers and functions of the Chief Executive. The language used in section 45 of the Act shows that the Chief Executive is required to discharge statutory powers and functions as enumerated in the said section. Sections 44 & 45 of the Act thus make the Chief Executive a statutory functionary under the Act and therefore, in the discharge of the statutory powers and functions, it cannot be disputed that he can be made amenable to the writ jurisdiction of this Court under Article 226 of the Constitution.
40. Clause (f) of section 45 of the Act is material for the purpose of this petition. However, for its proper understanding and effect, it is reproduced below along with Clauses (d) and (e) of sub-section (2) of section 42 of the Act:-
'42(2). Without prejudice to the generality of the foregoing power, such power shall include the power-
(a) ...
(b) ...
(c) ...
(d) to appoint a Chief Executive and such other employees of the society (out of the list of persons referred to is section 50) as are not required to be appointed by the Chief Executive ;
(e) to make provisions for regulating the appointment of employees of the Multi-State Co-operative Society and the scales of pay, allowances and other conditions of service of including disciplinary action against such employees;
(f) ...
(g) ....
(h) ....
(i ) ....
'45. Powers and functions of Chief Executive . The Chief Executive shall exercise the powers and discharge the functions specified below, namely--
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) making appointments to posts in the Multi-State Co-operative Society in accordance with the rules made under Clause (e) of sub-section (2) of section 12 except the posts in relation to which the power of appointment vests in the Board under Clause (d) of that sub-section;
(g) ...
(h) ...
(i) ...'
40A. Perusal of Clause (f) of section 45 of the Act shows that it confers power upon the Chief Executive of making appointment to posts in the Multi-State Co-operative Society in accordance with the rules made under Clause (e) of sub-section (2) of section 42 referred to above except the posts in relation to which the power of appointment vests in the Board under Clause (d) of the said sub-section (2) of section 42 of the Act. It is thus clear that so far as the employees of the respondent No. 1 Bank except the Chief Executive are concerned, the power of their appointment vests in the Chief Executive. The power to appoint the Chief Executive of the Multi-State Co-operative Society by virtue of Clause (d) of section 42(2) or at any rate as provided in section 44 of the Act vests in the Board. It is needless to say that as provided under section 16 of the General Clauses Act, 1897, unless a different intention appears, the power to make appointment includes the power to dismiss the employee from service also. It is, therefore, clear that the power to dismiss the petitioner from service exercised by the respondent No. 2 as the Chief Executive of the respondent No. 1 society is a statutory power which is exercised by him as provided in section 45(f) of the Act.
41. The above legal position cannot be disputed by the respondents, because that is the very basis of their submission in regard to the question of statutory bias of the respondent No. 2 since it is urged in support of the above submission that the statutory power cannot be delegated. The question, however, whether there is statutory bias or not, we shall consider when we consider the plea of the petitioner on merits that the order of his dismissal is vitiated by bias of the respondent No. 2. Suffice it to state at this stage that according to section 16 of the General Clauses Act itself which provides for a cannon of construction of a statute, if a different intention appears, the power to dismiss need not be read in the power to appoint conferred under the statute. If, therefore, the Board, in the exercise of its power under Clause (e) of section 42(2) of the Act designates an authority other than the Chief Executive as a Disciplinary authority with power to dismiss any employee or any class of employee of the Multi-State Co-operative Society, then the Chief Executive cannot exercise the power to dismiss in respect of such employee or class of employees by virtue of his power to appoint the employees conferred under Clause (f) of section 45 of the Act.
42. The next question to be examined is whether there are any provisions made by the Board under Clause (e) of sub-section (2) of section 42 of the Act for regulating the conditions of service including appointment of employees of Multi-State Co-operative Society and the disciplinary action to be taken against them. As already pointed out, it is material to see that since a statutory power is conferred in this regard under the aforesaid Clause (e) of section 42(2) of the Act the provisions or the rules made by the Board in exercise of the said power would have legal or statutory force. It has, therefore, to be seen whether any such provisions or rules are made by the Board in exercise of its power under Clause (e) of section 42(2) of the Act. In this regard, it is urged that there are settlements regarding conditions of service arrived at between the Board and the representatives of the employees under the provisions of the Industrial Disputes Act, 1947. It is not in dispute that the said conditions of service, are made applicable by the respondent No. 1 Bank to all its employees whether they are 'workman' or not within the meaning of the definition of the said expression under section 2(e) of the Industrial Disputes Act, 1947. It is in respect of the workmen alone that any settlement as defined in section 2(p) of the above Act can be arrived at and which is binding as provided in section 18 of the said Act. It is, therefore, clear that as regards the non-workman, it is the Board of the respondent No. 1 Bank which had made applicable to them the said settlement regarding conditions of service pursuant to its power referable only to section 42(2)(e) of the Act.
43. It may be seen that since there is no procedure laid down for the Board how to make provisions or rules regarding conditions of service under section 42(2)(e) of the Act, such provisions may be made toy the Board either unilaterally by its own act i.e. by the resolution passed by it or it may be by the bilateral act by entering into an agreement or the settlement with the representatives of the employees. However, one thing is clear that from the time such a settlement was initially arrived at long back in 1979 after the expiry of each such settlement, a fresh settlement has been arrived at thereafter each time which would show that the Board has adopted such settlement for regulating the conditions of service of all its employees whether they are workmen or not. Such general or uniform norms common for all the employees of the respondent No. I Bank, whether workmen or not under the Industrial Disputes Act, 1947, to regulate their conditions of service introduced through the settlement under the Industrial Disputes Act, 1947 are referable only to the power of Board under Clause (e) of sub-section (2) of section 42 of the Act and therefore, such provisions under the settlement would have statutory force under section 42(2)(e) of the Act, apart from its binding effect under section 2(e) read with section 18 of the Industrial Disputes Act, 1947 in relation to workmen as defined in the said Act.
43A. In taking disciplinary action, therefore, the Chief Executive has to follow the provisions of the said settlement and any breach of the provisions of the said settlement with regard to disciplinary action can be a subject of writ of mandamus because it is enforcement not simpliciter of any obligation cast by the settlement arrived at under the Industrial Disputes Act, 1947 as such, but it is an enforcement of a provisions referable to Clause (e) of such-section (2) of section 42 of the Act. No such question has been considered by the Supreme Court in L.I.C. v. D.J. Bahadur A.I.R. 1980 S.C. 2180 and by this Court in Scindia Steam Navigation Co. v. Scindia Employees Union & ors., 1983 Mh.L.J. 1058 and they are thus of no assistance in the instant case.
44. It must be seen that law requires the Board to frame rule under Clause (e) of section 42(2) and the Chief Executive to make appointment, which carries with it the power to direct dismissal from service, in accordance with the rules framed under the aforesaid Clause (e). The respondent No. 1 cannot be allowed to take advantage of its own wrong in not discharging its statutory obligation to frame rule under the aforesaid Clause (e) and thus to deprive its employees of their statutory protection for which reason also the settlement in question must be read as referable to the said Clause (e) of section 42(2) of the Act.
44A. Looking at it from another angle, as already pointed out, the Chief Executive is indisputably a statutory functionary exercising statutory powers and functions as envisaged by section 45 of the Act. The power to make appointments to the posts in the Multi-State Co-operative Society is conferred upon him under Clause (f) of section 45 of the Act which he has to exercise in accordance with the rules made by the Board under Clause (e) of sub-section (2) of section 42 of the Act, which in other words would mean that the employees of the respondent No. 1 also would hold a statutory status since their appointments are made in accordance with the Statute i.e. Clause (f) of section 45 read with the rules framed by the Board under Clause (e) of sub-section (2) of section 42. If they thus held a statutory status, any action on the part of the Chief Executive to disturb their statutory status would be infraction of the Statute under which they are appointed, i.e., Section 45(f) of the Act and therefore, such action would be illegal and liable to be struck down by issue of an appropriate writ under Article 226 of the Constitution of India.
45. It is well settled that when a statutory authority is empowered to terminate the services of the employees, then it has to observe the principles of natural justice which are implicit in the exercise of such a power. In fact, such a power has been characterised as quasi-judicial in nature by the Supreme Court relying upon the tests laid down by Lord Reid in the case of Ridge v. Baldwin 1964 A.C. 40. See the decision of the Supreme Court in the case of Calcutta Dock Labour Board & ors. v. Jaffar Iman & ors. : 1966CriLJ189 , which is in turn has relied upon the previous decisions in the case of Associated Cement Goa Ltd. v. P.N. Sharma : (1965)ILLJ433SC and Bhagwan v. Ram Chand, : [1965]3SCR218 . Even though the power may be administrative in nature, it has been held in the case of State of Orissa v. Binapani De, : (1967)IILLJ266SC , that an administrative order which involves civil consequences must be passed consistently with the principles of natural justice. Following the above decision and relying also upon the case of Ridge v. Baldwin 1964 A.C. 40, the Supreme Court has held in the case of Dr. Bool Chand v. Chancellor, : (1968)IILLJ135SC , that the principles of natural justice are implicit in the termination of appointment of the Vice Chancellor whose appointment is statutory and any violation of the said principles of natural justice would vitiate the termination.
46. We may also refer to the judgment of the Supreme Court in the case of Mafatlal v. Dy. Controller of State Transport, : (1966)ILLJ437SC , in which the infringement of the regulation framed by the State Transport Corporation which was an autonomous statutory corporation formed under the Road Transport Corporations Act, 1950 as also the infringement of the principles of natural justice was held to attract the writ jurisdiction of the High Court under Article 226 of the Constitution. Consequently, the impugned order of termination of service in the said case which suffered from non-compliance with the regulation framed by the Corporation and also the principles of natural justice was struck down by the issue of a writ of certiorari in that case. The above judgment in Barot's case which was a judgment of the Constitution Bench of the Supreme Court was followed by the Supreme Court in its majority judgment in the case of Sukhdeosingh v. Bhagatram, : (1975)ILLJ399SC , although the minority judgment in that case sought to distinguish it on the ground that the question whether the State Transport Corporation was 'State' within Article 12 of the Constitution or not was not raised in Barot's case cited supra. It must also be seen that the majority judgment in Sukhdeosingh's case cited supra speaking through Ray, C. J.,(as he then was) has stated in para 33 that the Supreme Court has repeatedly observed that when the rights are affected by the decision taken under the statutory powers, the Court would presume existence of a duly to observe the rules of natural justice and compliance with rules and regulations imposed by Statute.
47. It is, therefore, clear that when the power to dismiss an employee is read in section 45(f) of the Act, in view of section 16 of the General Clauses Act as the power to make appointment carries with it the power to dismiss, unless intended otherwise, in exercising such statutory power to dismiss the principles or natural justice must be observed. The said power to dismiss must also be exercised in consonance with the rules framed under or referable to Clause (e) of section 42(2) of the Act. If there is failure in complying with the principles of natural justice or the rules under the Act, an appropriate writ in the nature of certiorari or mandamus can be issued to strike down the order of dismissal.
48. Even assuming that the conditions of service including the rules relating to disciplinary action under the Settlement in question in the instant case are contractual in nature, since they are in aid of exercise of the statutory power to dismiss, any infringement thereof would effect the legality of the said power to dismiss exercised under section 45(f) of the Act. We may in this regard draw assistance from the decision of this Court in the case of Pandurang Hindurao Patil v. State of Maharashtra, 1983 Mh.L.J. 1081, cited supra wherein although the bye-laws relating to constitution of the Managing Committee were held to be contractual or of non-statutory character, it was held that the infraction or the violation of the said bye-laws would result in affecting the constitution of the Managing Committee and that would then become infraction or violation of section 73 of the Maharashtra Co-operative Societies Act itself which required the constitution of the Managing Committee to be in accordance with the bye-laws.
49. Thus, in any view of the matter, the order of dismissal passed by the respondent No. 2 in the instant case is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution. Hence the preliminary objection raised on behalf of the respondents that the dismissal of the petitioner from service is contractual in nature and if the respondent No. 1 Co-operative Bank is not 'State' within Article 12 of the Constitution, the writ petition under Article 226 of the Constitution is not maintainable, is rejected. In the light of the view which we have taken , it is necessary to consider the question whether the bye-laws framed by the respondent No 1 society have statutory force in the sense that they are framed in accordance procedure laid down by the rules framed under the Act and upon matters contained in the rules and require approval of the Central Registrar for amending the same because the Central Government has power to frame rules in that regard as provided under section 109(2)(v) and pursuant to which actually the rules are framed and are contained in the Multi-State Co-operative Societies (Registration of Membership, Direction and Management, Settlement of Disputes, Appeal and Revision) Rules, 1985, the relevant rules being Rules 7 and 8 of the said Rules.
50. Turning now to the contentions raised on behalf of the petitioner on merits, the first contention raised on behalf of the petitioner is that there is double punishment meted out to the petitioner as he was previously warned for the same misconduct for which the present charge-sheet is issued to him and that by issuing such a warning the management has condoned the lapse or the misconduct on his part by accepting his explanation. It is made clear here that as regards the question of withholding of his annual increments for two years i.e. 1986-87 which were subsequently released as per the office order dated 30-7-88, the petitioner has not based his case upon the imposition of the alleged punishment of withholding of two increments since they were released after his representation in that regard.
51. As regards the question of issuing a warning petitioner, the learned Counsel for the petitioner has submitted that in view of the irregularities alleged to be committed by the petitioner, the respondents had orally asked him to tender his resignation so that disciplinary action against him could be avoided. Accordingly, the submission on behalf of the petitioner is that he had tendered his resignation by his letter dated 4-12-1986. However, immediately thereafter by his letter dated 10-1-1987 he had withdrawn his aforesaid letter of resignation which, according to him, was submitted by him not in a proper frame of mind when he was on sick leave since 17-11-1986. But, inspite of his withdrawal, the said resignation was accepted by the Managing Director of the respondent No. 1 by his letter dated 17-1-1987 which letter was subsequently cancelled on sympathetic ground as stated in the letter of the Managing Director dated 28-1-1987.
52. It is in the above letter dated 28-1-1987 that the Managing Director has staled that the petitioner is cautioned to be very particular in future in discharging his duties scrupulously. Emphasis is laid upon the above caution issued by the Managing Director in his letter dated 28-1-1987 in support of the submission that for the same misconduct as contained in the present charge sheet, the petitioner is issued a warning previously and therefore, no second punishment i.e. the impugned punishment of dismissal can be imposed upon him. Alternatively, the submission is that by merely issuing a caution the management has condoned the lapse or misconduct on the part of the petitioner and therefore, no charge-sheet in respect of the same can be issued to him by the management.
53. It is then submitted that after being asked to join his duties in Ponda Branch as Accountant with immediate effect as per the letter of the Managing Director dated 28-1-1987 the petitioner was in fact not allowed to join his duties in Ponda Branch by the Branch Manager of Ponda Branch because of which he was transferred to the Head Office with immediate effect by the Managing Director by his letter dated 4-2-1987. The learned Counsel for the petitioner has brought to our notice letter dated 4-2-1987 in which it is stated that the petitioner will not be entitled for the benefits like joining period, TA and DA etc. which are otherwise permissible in case of regular transfers. The submission, therefore, is that the transfer of the petitioner is by way of punishment for the same misconduct for which the charge-sheet is issued in the instant case.
54. The respondents have denied that the petitioner was orally asked to resign because of the misconduct alleged against him in the charge-sheet in the instant case. They have also denied that there is any double punishment imposed upon the petitioner for the same misconduct and that the management had condoned any lapse or misconduct on the part of the petitioner by allowing him to join his duties after he had withdrawn his resignation. They have further denied that transfer of the petitioner is by way of punishment for the same misconduct.
55. There is thus a dispute on the main question whether the petitioner was orally asked to resign by the management to avoid disciplinary action for the same misconduct for which the charge-sheet was issued in the instant case. Except the word of the petitioner, there is no other material to show that the petitioner had tendered his resignation because of the said desire of the management to avoid disciplinary action against him. On the other hand, although the actual letter of resignation is not produced before us, it appears from the letter of the petitioner dated 10-l-1987 submitted by him to the Managing Director of the respondent No. 1 to treat his letter of resignation dated 4-12-1986 as cancelled and withdrawn that the petitioner was sick and was on sick leave since 17-11-1986 prior to which also he used to go on sick leave and it is, therefore, on health grounds that he had submitted his resignation. However, on second thought, it appears that according to him, the said letter of resignation was submitted by him in a confused state of mind, and since he bad to maintain his family and his aged parents who were ill and since besides his service, there was no other source of income to him, he withdrew his resignation by the aforesaid letter dated 10-1-1987. It is in view of the above letter of withdrawal of resignation dated 10-1-1987 that the petitioner was permitted to join his duties by the Managing Director by his letter dated 28-1-1987. The caution given to him about being particular in future in discharging his duties scrupulously has, therefore, to be understood in the light of the above letter of the petitioner dated 10-1-1987 withdrawing his resignation.
56. It appears from the letter of the petitioner dated 10-1-1987 withdrawing his resignation that the petitioner was irregular in attending to his duties in the Bank, may be for the reasons that he was sick. That would also explain cancellation on sympathetic ground of the letter of the management dated 17-1-1987 accepting the resignation of the petitioner although it is true that since the resignation was withdrawn by the petitioner before its acceptance, it could not have been accepted by the respondent No. 1. Only because the petitioner was asked to be particular in future in discharging his duties scrupulously it would not follow that it was a warning for the same misconduct for which the charge-sheet in the instant case was issued. In fact, even otherwise, assuming that the petitioner was asked orally to tender his resignation to avoid disciplinary action against him for the same misconduct. The petitioner having withdrawn his resignation, it was open to the management to take disciplinary action against the petitioner for the same misconduct. In the aforesaid letter dated 28-1-1987 he was asked to be particular in discharging his duties because it was intended that when the petitioner would join his duties after withdrawal of his resignation, he should be regular in his work and should work properly. It cannot, therefore, be said that the management bad condoned the lapse or the misconduct on the part of the petitioner by giving him caution in its letter dated 28-1-1987 which in the first place cannot be correlated to the misconduct which is the subject matter of the charge sheet in the instant case and secondly, because even otherwise as shown above, when the petitioner had withdrawn his resignation, it was open to the management to lake disciplinary action against him.
57. As regards the question whether the transfer is by way of punishment, the respondents have along with their return enclosed the letter of the petitioner dated 2-2-1987 in which he had himself requested that due to some misunderstanding between him and the Branch Manager of Ponda Branch, he should be transferred to D. Nagar or any other suitable place as early as possible. According to the learned Counsel for the respondents, the transfer of the petitioner was made to the Head Officers as per the letter dated 4-2-1987 because of the request made by the petitioner himself for which reason also since it was a request transfer, he was not entitled to benefits like joining period, TADA etc. It is. therefore, clear that the transfer of the petitioner was not by way of any punishment because the petitioner himself had requested for his transfer from Ponda Branch and since it was a request transfer be was not entitled under the rules for the benefits of joining period, TADA etc. which are available in case of regular transfers. The submission on behalf of the petitioner that the transfer is by was of punishment also, therefore, fails.
58. There is thus no merit in the must contention raised on behalf of the petitioner that the petitioner has already been punished for the same misconduct for which he is dismissed from service or that the management has condoned the said misconduct by issuing him a warning for the same. Since it is a request transfer, the said transfer is not contrary to transfer policy of the management incorporated in Clause 11 of the Settlement arrived at between the management and the representatives of the employees under the provisions of the Industrial Disputes Act. 1947.
59. The next contention raised as behalf of the petitioner is that the appointment of Shri N.M. Bhartiya as the Enquiry Officer and of the respondent No. 2 as Presenting Officer as per the letter of the Managing Director dated 15-1-1988 is illegal since there was no post of the Managing Director under the Act which was applicable to the respondent No. 1 with effect from 30-5-1987 when the territory of Goa became a separate State and when in view of section 95 of the Act. The respondent No. 1 Society was deemed to be a Multi-State Co-operative Society under the Act. It is then pointed out that there was no post of Managing Director under the Act and the said post which was created under the Bye-law No. 43 ceased to exist from 30-5-1987 and the said Bye-law No. 43 providing for such a post of Managing Director and Bye law No. 46 (k) conferring the power upon him to appoint, suspend, dismiss or otherwise to deal with the employees of grade-II or below of the bank in accordance with the rules as may be framed in that behalf was inconsistent with the provisions of the Act and was not, therefore, operative in view of the provisions of section 95(l) of the Act. The learned Counsel for the petitioner has relied upon the judgment of this Court is support of the above submission that the post of Managing Director ceased to exist from 30-5-1987 and therefore, any power conferred upon the Managing Director as such would also be inconsistent with the provisions of the Act and could not be exercised by him after 30-5-1987.
60. It is in the light of the above submission that it 15 urged that the appointment of the Enquiry Officer and the Presenting Officer as per, letter dated 15-1-1988 was illegal and without jurisdiction because there was no such post of Managing Director on or after 30-5-1987 and the Managing Director was not conferred with any such power under the Act which recognised the post of Chief Executive only and conferred powers and functions upon it under section 45 of the Act. It is pertinent to see that the post of the Chief Executive upon whom the powers and functions are conferred under section 45 of the Act is functional as is clear from section 44 of the Act which while referring to the post of the Chief Executive states 'by whatever designation called'. Perusal of Bye-law No. 43 would show that as per its Clause (b) the Managing Director is also the Chief Executive of the Bank. The power, and duties conferred upon him under Bye-law No. 46(k) are similar to the powers and duties conferred upon the Chief Executive under section 45(f) of the Act in regard to appointment and dismissal of the employees like the petitioner.
61. However, in view of the judgment of this Court relied upon the petitioner, assuming that the post of Managing Director ceased to exist after 30-5-1987 still all his acts including the appointment of the Enquiry Officer and the Presenting Officer in this case by his order dated 15-1 1988 are not rendered invalid in view of the de-facto doctrine which is expressly incorporated in section 51 of the Act. For de-facto doctrine see Achanti Sreenivas Rao v. State of A.P., : 1981CriLJ876 ; Mis. Beopar. Sahayak Co. Ltd. v. Viswanath, : [1987]3SCR496 , and State of U.P. v. Rafaiqudin, : [1988]1SCR794 . Even otherwise, the petitioner did not raise this question of jurisdiction before the Enquiry Officer and ultimately the proceeding in the Departmental Enquiry and the Enquiry Report must be deemed to have been ratified by the Chief Executive i.e. the respondent No. 2 under the Act who has considered the said proceedings and has taken the ultimate action against the petitioner. It is not in dispute that the respondent No. 2 was competent to impose punishment upon the petitioner in view of the power conferred upon the Chief Executive under section 45(f) of the Act. The above contention raised on behalf of the petitioner that the appointment of the Enquiry Officer and the Presenting Officer is illegal and without jurisdiction and therefore, all proceedings taken by them are vitiated, cannot be accepted.
62. As regard the contention that the charge-sheet issued by the Managing Director on 28-5-1967 is also illegal and without jurisdiction for the above reasons, the said contention is misconceived, because the charge-sheet a issued prior to 30-5-1987 i.e. prior to the application of the Act to the respondent No. 1 Society when as per the bye-laws referred to above the Managing Director was competent to issue the above charge-sheet dated 28-5-1967. The learned Counsel for the petitioner has, therefore, also not seriously pressed the above contention.
63. We now turn to the principal contentions urged on behalf of the petitioner in this writ petition. It is urged that there is breach of the principle of natural justice in the conduct of the Departmental Enquiry held against the petitioner and in the procedure followed in imposing punishment of dismissal against him. It is also urged that the said enquiry is vitiated on account of the bias of the Enquiry Officer as well as the bias of the respondent No. 2 who enacted the rules of the Presenting Officer, the witness and ultimately the disciplinary authority to impose the penalty of dismissal upon the petitioner.
64. As regards the procedure adopted by the Enquiry Officer in the conduct of the Departmental Enquiry against the petitioner, there is no infirmity pointed out in the same. However, as regards the procedure followed by the respondent No. 2 in imposing punishment of dismissal against the petitioner, the grievance is that after the Departmental Enquiry was over copy of the enquiry report was not supplied to the petitioner and that no show-cause notice against the proposed punishment was given to him before imposing the punishment of dismissal. As regards the question of supplying copy of the enquiry report, the law is now settled in view of the judgment of the Supreme Court in the case of Union of India &. ors. v. Mohd. Ramzan Khan, with connected matters : (1991)ILLJ29SC , in which it is held that even though an opportunity in regard to the proposed punishment may not be necessary to be give to the delinquent employee, the principles of natural Justice require that he must be supplied with a copy of the report of the enquiry before the order of dismissal is passed against him. Therefore, the question relating to the necessity of supplying the report of enquiry where there is no obligation to issue notice to show-cause against the proposed punishment stands concluded by the above judgment of the Supreme Court.
65. The learned Counsel for the respondent has, however, urged before us than in fact, after the receipt of the enquiry report by the respondent No. 2. a notice dated 14-6-1989 to show cause against the proposed punishment was sent to the petitioner by registered post with acknowledgment due upon his home address alongwith the copy of the enquiry report. However, the said show-cause notice alongwith the enquiry report enclosed there with was returned back on 24-6-1989 by the postal authorities on the ground that the petitioner was not found in his house. The learned Counsel for the respondents has brought to our notice the original envelope with registered A.D. to show the endorsements of the postman thereon. The postal endorsement show that the postman had gone to the house of the petitioner on 16-6-1989, 17-6-1989, 19-6-1989,20-6-1989, 22-6-1989, 23-6-1989 before finally returning back to the sender in the registered envelope containing the show-cause notice and the enquiry report.
66. The learned Counsel for the petitioner has submitted that during the above period, the petitioner was ill and was not in Goa, but was taking treatment in Karnataka Health Institute. Ghatapragha in support of which he has produced the documents showing medicines prescribed to him bearing dates 17-6-1989 as also 27-7-1989. From the said documents, it is not possible for us to hold that he was an in-door patient in the said Institute during the above period. Be that as it may, the petitioner bad also not informed the respondent No. 2 that the show-cause notice should be-served upon him at some particular address or that he was taking treatment in the above hospital during that time. The management, therefore, cannot be blamed for sending the show-cause notice along with the enquiry report at the address supplied to it by the petitioner. Apart from the fact that there is no obligation to give opportunity to the petitioner against the proposed punishment under Clause 26 of the Settlement, it cannot be held that the management is guilty of any non-compliance with the same. Since the enquiry report was also enclosed with the show-cause notice, it cannot also be held guilty of non-compliance with the principles of natural justice in not supplying the report of the enquiry to the petitioner.
67. After the show-cause notice along with the enquiry was returned back by the postal authorities on 24-6-1989, the respondent No. 2 passed the order of dismissal of the petitioner from service on 27-6-1989. The petitioner by his letters dated 4-7-1989 and 17-7-1989 demanded the enquiry report which was supplied to him under covering letter of the respondent No. 2 dated 1-8-1989 in which it was pointed out that the enquiry report was sent to the petitioner earlier along with the show-cause notice dated 14-6-1989, but the said registered A/D envelope was returned back with postal remark that the petitioner was not available. From the above facts and circumstances, it cannot be said that there is any breach of natural justice is not supplying the enquiry report to the petitioner who due to his own fault had not received the same.
68. There is, however, much force in toe contention raised on behalf of the petitioner that the enquiry is vitiated by bias of the Enquiry Officer and the respondent No. 2. As regards the question of bias of the respondent No. 2, it is urged that the respondent No. 2 was working as an Administrative Officer when he was appointed by an order dated 15-1-1988 of the Managing Director as the Presenting Officer in the instant enquiry case against the petitioner. However, during the, Pendency of the enquiry case against the petitioner but before the actual evidence in the said enquiry case commenced, the respondent No. 2 was empowered to act as the Chief Executive of the respondent No. 1 Co-operative Bank by an order dated 25-10-1988 issued by the Chairman of the Board in the exercise of the powers under section 44 of the Act vested in the Board and in view of the Resolution No. 2 of the Board passed in its meeting held on 18-10-1988. Thus after 25-10-1988 the respondent No. 2 combined the article of the Presenting Officer as also the Acting Chief Executive who had power to take distribution region against the petitioner for which purpose be could also make appointment of the Enquiry Officer the exercise of his power as the Acting Chief Executive of the respondent No. 1.
69. It is this respondent No. 2 who combined the relevant of the Presenting Officer and the disciplinary authority who appeared as a witness also before the Enquiry Officer on 6-1-1989. Perusal of the enquiry proceedings on 6-1-1989 would show that the Enquiry Officer had asked the respondent No. 2 to proceed wish the presentation of the case on behalf of the disciplinary authority and the appointing authority whereafter his deposition was recorded. The last para of the examination in chief would show that the respondent No. 2 had categorically stated before the Enquiry Officer that his presentation of the case should be considered as his evidence by witness on behalf of the disciplinary authority. Accordingly, the said presentation was taken as his evidence and the petitioner was given an opportunity to cross-examined him for which the enquiry was adjourned to 16-1-1989 on which date the petitioner cross-examined the respondent No. 2.
70. Perusal of the evidence to the respondent No. 2 shows that he has not only produced the relevant documents in regard to the alleged misappropriation of the funds and the tempering of the records of the Bank, but has also deposed to the facts therein asserting that the petitioner was guilty of misappropriation of the Bank and of committing serious irregularities in his work. In his cross-examination he has admitted that he was acting as the Chief Executive of the Bank at the time of giving his evidence in these proceedings. Although there were other witnesses examined by the Bank to prove the actual irregularities committed by the petitioner, perusal of the report of the Enquiry Officer shows that he has heavily related upon the evidence of the respondent No. 2 and in particular the written brief dated 7-4-1989 submitted by him in the instant case which, according to him was so petitioner no alternative but to reproduce it in his report and to agree with the same. He has then reproduced the written brief of the Presenting Officer and has rendered findings on the basis of the same. It is, however, pertinent to see that during all these material stages of enquiry including the stage of evidence and the final submission of the prosecution case, the respondent No. 2 was the disciplinary authority. The Enquiry Officer had, therefore, desired in his report that while taking further action on the report, the respondent No. 2 should not be involved in any manner. Even then the respondent No. 2, in his capacity as a disciplinary authority, gave the show-cause notice to the petitioner against the proposed punishment and imposed the punishment of dismissal upon him as per his order dated 27-6-1989.
70A. The learned Counsel for the respondent has urged before us that since the decision taken by the respondent No. 2 in his capacity as a disciplinary authority was just and proper in the facts and circumstances of the instance case, his decision cannot be set aside on the ground of bias. He has also urged that the petitioner has also waived his right to challenge the report of the Enquiry Officer or the decision of the respondent No. 2 because he did not raise the question of bias at the first available opportunity when the respondent No. 2 was appointed as an Acting Chief Executive on 25-10-1988 and bias on the contrary, submitted to the enquiry by participating in it. To support, the learned Counsel for the respondent has drawn to our notice certain passages on pages 473, 474 in regard to the rule against bias and from pages 261, 264 to 267, 482 and 494 on the question of waiver of objection on the ground of bias from the book on Administrative Law by H.W. R. Wade (6th edn). He has also drawn to our notice certain passages from pages 275, 276 from the book on Judicial Review of Administrative Action by dc Smith (4th edn.). He has then urged that since the respondent No. 2 i.e. the Chief Executive has to exercise statutory power under section 45(f)of the Act directing dismissal of the petitioner, such a statutory power cannot be delegated. Hence the submission is that this is a case of statutory bias covered by the doctrine of necessity which is an exception to the rule of bias and the decision of the respondent No. 2 to dismiss the petitioner from service, therefore, cannot be challenged on the ground of bias. As regards the question whether the statutory powers 'an be delegated, he has brought to our notice the relevant pages at page 237 Constitution (Vol. 1) (3rd edn.) and also the passages from pages 357 and 359 from the book on Administrative Law by H.W.R. Wade (6th edn.).
71. To appreciate the rival submissions made on behalf of the parties, it is pertinent to see that the rule against bias of the authorities whether judicial, quasi-judicial or administrative which are empowered to adjudicate upon the rights of the parties in based upon the basic tenets of the principles of natural justice viz. (1) No man can be judge in his own cause; and (ii) Justice must not only be done, but must appear to have been done. It is now well settled that the principles of natural justice are applicable to the administrative decisions also in regard to which the duty cast upon the administrative authority is to act in a fair and just manner in deciding the rights of the parties. As regards the application of the rule of bias, it is not necessary that there must be a bias in fact. If there is a real likelihood of bias then also the decision of the authority is vitiated. This is the view taken by the Supreme Court in the case of Ashok Kumar Yadav. v. State of Haryana : AIR1987SC454 . It is held as under:-
'We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be judge in his own cause and that if there is a reasonable likelihood of bias it is 'in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting'. The question is not whether the judge is actually biased or in fact, decides partially, but whether there is a likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias, but that the circumstances are such that to create a reasonable apprehension in the mind of others that there is likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where, judicial power strict to sense is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is: also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies for it is vital to the maintenance of the rule of law in a welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner'.
72. The next question that arises for consideration is what 'a real likelihood of bias' means. It would be useful to refer to page 262 of book on Judicial Review of Administrative Action (4th edn.) by de Smith. In this regard it is observed therein that a 'real likelihood' of bias means at least a substantial possibility of bias. It is further observed that the Court will judge of the matter 'as a reasonable man would illegal of any matter the conduct of his own business'. We may also refer to the observations of Lord Denying M. R. in the case of Metropolitan Properties (FGG) Ltd. v. Lannon, (1969)1 Q.B. 977 in which it is observed as follows :-
'Nevertheless there must appear to be a real likelihood of bias, surmise or conjecture is not enough ... There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, In fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rested in confidence : and confidence is destroyed when right minded people go away thinking : 'the judge was biased'.
It is in the light of the above principles in regard to rule against bias that we have to consider whether the Enquiry Officer and the respondent No. 2 who acted as a disciplinary authority were biased in the instant case or not.
73. It has next to be seen that there may be likelihood of bias of adjudicating authority because of several factors such as personal attitudes and relationships and also because of his attitudes towards the issues. It has been observed at page 270 in the book on Judicial Review of Administrative Action (4th Edn.) by de Smith that disqualification for bias may exist where a member of a tribunal has an interest in the issue by virtue of his identification with one of the parties, or has otherwise indicated partisanship in relation to the issue. What we are concerned with in the instant case is the bias of the adjudicating authority towards the issue or the subject matter of the enquiry. This has been well considered by N.P. Jain and S.N. Jain in their book on Principles of Administrative Law (3rd Edn.) at page 210 relying upon the. decisions of the Supreme Court and the High Courts. The relevant passage from the said book at page 210 is extracted below : -
'To disqualify there has to be some close and direct connection between the adjudicating authority and the issue in controversy. This may happen when the adjudicator acts in several capacities, say, both as a judge and a witness, or as a judge and a prosecutor, or as a judge and complainant. Thus, in one case, an Enquiry Officer in a departmental enquiry was held to be disqualified when he left the enquiry, gave evidence against the person against whom he was conducting the enquiry, and then resumed the enquiry and gave his decision. Similarly an Enquiry Officer was held to be disqualified from holding an inquiry in a disciplinary proceeding when he himself had framed the charges. In another case, an enquiry was commenced by the general manager of a factory against some workmen. After five witnesses had been examined, the managing director took over the enquiry and examined the general manager as a witness. The proceedings were quashed because quite apart the incongruity of the person who was at the initial stage presiding over tile enquiry stepping into the witness box at a later stage, the managing director who later took over the enquiry was from the very beginning in charge of the prosecution and was active in securing proper evidence to establish the charges against the workman. On a similar basis, if a member of a tribunal recommends a particular applicant for a permit, be will be disqualified from sitting as the member of the tribunal to decide the matter'.
74. As regards the adjudicator acting in capacity both as a judge and a witness, the above book relied upon the decision of the Supreme Court in the case of State of U.P. v. Mohd. Hoor A.I.R. 1958 S.C. 86. The most important judgment which has been relied upon therein and which is relevant for the purpose of the instant writ petition is the judgment of the Supreme Court in the case of Andhra Scientific Co. v. Seshagiri Rao (1961) XI L.L.J. 11, in which an enquiry was commenced by the General Manager of a Factory against some workmen. However, after five witnesses were examined, the Managing Director took over the enquiry and examined the General Manager as a witness. The proceedings were quashed because quite apart the congruity of the person who was at the initial stage presiding over the enquiry stepping into the witness box at a later stage, the Managing Director who later took over the enquiry was from the very beginning in charge of the prosecution and was active in securing proper evidence, to establish the charges against the workmen. This case is important from our point of view also because even if there is no objection raised by the worker to the presence of the manager who was biased, it would not amount to his consent that the dismissal order should be passed by him.
75. Another facet of bias which is material m the case' of a departmental enquiry is that there may be a bias of the Enquiry Officer and there may be a bias of the punishing authority also. In the instant case the bias in regard to the subject matter is attributed to both. In evaluating the question whether the punishing authority is biased because he appeared as witness before the Enquiry Officer, the question will have to be considered in the facts and of each case. For instance, in the case of Anglo American Direct Tea Trading Co. v. Labour Court. Coimbatore 1971 L.L.J. 147 decided by the Madras High Court wherein it is held that if the Manager could alone depose to the fact that the delinquent workman has disobeyed his orders and if there was no other person competent to impose the punishment upon him, the order of dismissal passed by him will not vitiate the enquiry in the absence of mala fides or previous enmity because the Manager appeared as witness during the enquiry. However, otherwise if the punishing authority which can appoint the Enquiry Officer appears as a witness before the Enquiry Officer and then applies his mind to the report of the Enquiry Officer, there would be presumption of bias and the enquiry will be vitiated. See the judgment of the Delhi High Court in H.M. Nanda v. Director, Regional Research 1974 S.L.C. 33. It is in the light of the above principles in regard to the rule against bias that we have to consider the rival submissions of the parties in the instant case.
76. Turning now to the main question whether there is real likelihood of bias so far as the responded No. 2 is concerned, as already pointed out, it may be seen that a Chief Executive of the Bank has power to appoint an Enquiry Officer before whom the respondent No. 2 even after he became Acting Chief Executive with effect from 25-10-1988 continued to appear and conduct the Departmental Enquiry case against the petitioner. He has conducted the case of the Department by presenting written briefs in support of its case and by examining witnesses including himself. It is incongruous to see that the very report of the Enquiry Officer which considers the submissions of the respondent No. 2 and the evidence of the witnesses examined by him for the respondent No. 1 including himself, comes before the respondent No. 2 for decision as a disciplinary authority. We have also referred to above bow the Enquiry Officer is impressed by his submissions when he has quoted in his report extensively from the written brief filed by the respondent No. 2 and has expressed that he has no alternative but to reproduce it and to agree with it fully. The Enquiry Officer has, therefore, fairly suggested that the respondent No. 2 should not be involved in the matter while taking further action on his report .
77. Apart from the appearance and the participate of the respondent No. 2 in the above manner in the Departmental Enquiry before the Enquiry Officer as a Presenting Officer, although he is superior authority over the Enquiry Officer being the punishing authority, the respondent No. 2 has himself examined as a witness and therefore, the Enquiry Officer has acted on his evidence in the matter. The learned Counsel for the respondents has in this regard urged that the respondent No. 2 has only presented the case for enquiry and has not acted as a witness. This submission on behalf of the respondents is belied by the categorical assertion of the respondent No. 2 himself that his presentation of the case should be considered as evidence by the witness on behalf of the disciplinary authority. He has, therefore, been cross-examined by the petitioner before the Enquiry Officer. The learned Counsel for the respondents has then urged that the respondent has merely produced certain documents before the Enquiry Officer. Perusal of his evidence would show that he has not only produced the documents but has deposed in his evidence on the basis of the same and has stated in his evidence that the petitioner has mis-appropriated the funds of the Bank and tampered the records of the Bank. He has thus given oral evidence in respect of the irregularities committed by the petitioner in relation to the documents produced by him. It is this evidence which has along with the evidence of the other witnesses of the Department weighed with the Enquiry Officer in holding the petitioner guilty of the charges levelled against him.
78. There is no manner of doubt in the instant case that the respondent No. 2 has identified himself to such an extent with the conduct of the Departmental enquiry before the Enquiry Officer by presenting written briefs and by examining witnesses for the enquiry including himself that he has incapacitated himself from acting as Disciplinary authority without prejudice or partisanship against the petitioner, in this regard there is a reasonable suspicion in the mind if the Enquiry Officer also who has suggested that the respondent No. 2 should not be involved while taking further action of his report. It is, therefore, clear that there was real likelihood of bias on the part of the respondent No. 2 the considering the enquiry report submitted to him by the Enquiry Officer and in talking the decision upon the punishment to be imposed upon the petitioner. It has to be seen that the disciplinary authority has to act in a fair and just manner by applying his mind independently to the report of the Enquiry Officer and to the material on record in arriving at his conclusions about the guilt of the delinquent employee as well as the question of the punishment to be imposed upon him. The submission made on behalf of the petitioner is, therefore, well founded that the action of the respondent No. 2 in imposing punishment of dismissal is liable to be struck down on the ground of bias.
79. As regards the bias of the Enquiry Officer, the submission on behalf of the petitioner is that his report is biased because of his observation that 'the written brief dated 7-4-1989 submitted by the Presenting Officer (i.e. the respondent No. 2) is so pertinent that be has no alternative but to reproduce it in his report with which be fully agreed'. The learned Counsel for the respondents has urged that the Enquiry Officer is not a judicial officer and is not well-versed in writing an order. The submission thus is that the way in which he has drafted his report should not be construed to mean that he had been carried away by the status of the respondent No. 2 as the disciplinary authority. It is true that the Enquiry Officer is not a Judicial officer and is not conversant with the manner is which the report enquiry should be written, but non-the-less the way he has expressed himself, shows that he had been impressed by the written brief of the respondent No. 2. However, we do not propose to consider the question whether the Enquiry Officer was biased or not because of the status of the respondent No. 2 appearing before him as a Presenting Officer while being a superior authority to him disciplinary authority particularly when we find that because of the bias of the .respondent No. 2 himself, the order of dismissal passed by him is liable to be set aside and particularly when the said Enquiry Officer has himself fairly expressed that the respondent No. 2 should not be involved in taking further action on his report.
80. Turning now to the objections raised on behalf of the respondents against applying the rule of bias in the instant case, it may be seen that if the facts show that there is a real likelihood of bias or actual bias on the part of the authority upon whom the power to judge is conferred, the fact that he has taken a right decision cannot save his decision from the challenge on the ground of bias. Moreover, in the instant case, the petitioner has challenged the decision of the Disciplinary Authority as well as the findings of the Enquiry Officer against him. Particularly, as regards the question of imposition of highest punishment of dismissal, it is pointed out that there was no financial loss caused to the Bank, that the irregularities detected in the work of the petitioner were common in nature in the sense that such irregularities were found in the working of the other-Staff members also for which reason a circular styled as 'Note' dated 10-11-1986 (Exhibit A to the petition) was issued by the Branch Manager, Ponda Branch of the respondent No. 1 so that in future such irregularities should not occur. It is also submitted that the respondent No. 2 had not taken the past record of the petitioner into consideration before imposing punishment of dismissal from service as it was bound to do so under Clause 26(e) of the Settlement. Even assuming that the charge could not be held to be proved, the question of punishment which was to be decided by the respondent No. 2 after taking into consideration the relevant factors in that regard such as aggravating or extenuating circumstances, if any, past record of the delinquent employee long length of service etc., was a question upon which it was possible that some other authority could have arrived at some other conclusion and impose some other lighter punishment upon the petitioner. It is thus not a full-proof case in which it can be said that the only punishment which could be imposed by the standards of a reasonable man was the punishment of dismissal from service. The above submission on behalf of the'' respondents, therefore, cannot be accepted.
81. As regards the question of waiver of the objection on the ground of bias, the learned Counsel for the petitioner has brought to our notice that the petitioner had already made it clear in his letter addressed to the Enquiry Officer dated 4-4-1988 that he was participating in the enquiry without prejudice to any rights to challenge the same at the appropriate stage, because, according to him, he bad already been imposed the punishment of warning and transfer to the Head Office by the respondent No. 1 Bank. After the order dated 25-10-1988 was issued by the Chairman of the respondent No. 1 appointing the respondent No 2 as the Acting Chief Executive, although in writing separately the objection to the enquiry on the ground of bias was not raised, the learned Counsel for the petitioner has brought to our notice that in the cross-examination of the respondent No. 2, he had been specifically asked the question about he being the Acting Chief Executive of the Bank and that he had acted as e Presenting Officer and the witness in the instant Departmental Enquiry case. Although specifically it is not put to him that he was disqualified on the ground of bias, such questions are asked to him obviously with a view to show his bias.
82. It is, however, pertinent to sec that in his evidence the petitioner has categorically raised the objection on the ground of bias because he has stated in his evidence that it was not fair that the respondent No. 2 should be a Presenting Officer as well as the disciplinary authority. He has also expressed an apprehension that he would be harassed by the respondent No. 2. The submission on behalf of the petitioner, therefore, is that inspire of the objection being raised during the evidence, the respondent No. 2 has not thereafter withdrawn himself either from his capacity as a Presenting Officer or as a Disciplinary Authority in the matter. In fact, had he withdrawn as the Presenting Officer, thereafter, there would not have been any cause to raise the ground of bias against the Enquiry Officer whose report is criticised as biased, because he had fully adopted the written brief submitted by the respondent No. 2 in his capacity as a Presenting Officer, obviously being influenced by his being a Disciplinary Authority. Alternatively had he withdrawn as a Disciplinary Authority, the ground in respect of his bias and the bias of the Enquiry Officer would not have survived. In fact, even the Enquiry Officer had suggested in his report that while taking further action on his report, the respondent No. 2 should not be involved in any manner which also shows that the respondent No. 2 had, as a Presenting Officer and as a witness in the Departmental Enquiry, identified with the case to such an extent that even according to the Enquiry Officer, he had incapacitated himself to pass the final orders in this matter.
83. In view of the above facts and circumstances it cannot be said that the petitioner had waived his objection as to the bias of the respondent No. 2 which, according to him, has vitiated the enquiry report and the final order of dismissal of the petitioner. In fact, the objection about bias was raised in time so that the respondents could act in the matter before proceeding further in the enquiry as well as in Dominating other Disciplinary Authority for the purpose of the instant case if thought necessary. Even otherwise, the petitioner was participating in the proceedings itself without prejudice to any of his rights as made clear by him in his letter dated 8-4-1988. It may be seen that if the dismissal order is passed by a person who acts as a judge and prosecutor or judge and a witness, then the dismissal as we shall show hereinafter, is invalid and therefore, even if no objection is taken, yet the action is vitiated since it goes to the rest of the matter. Even if no objection is taken, it does not mean that the petitioner has consented to the order being passed by the respondent No. 2. The above objection raised by the respondents on the ground of waiver, therefore, deserves to be rejected.
84. The next question which arises for consideration is, whether the bias of the respondent No 2 to act as a Disciplinary Authority there is a statutory bias which is an exception to the normal rule of bias based upon the doctrine of necessity. The submission of half of the respondents is that section 45(f) of the Act confers a statutory power upon the Chief Executive to make appointment which, as provided in section 16 of the General Clauses Act, 1897 includes the power 10 dismiss. The further submission is that since the power to dismiss is statutory, it cannot be delegated. In appreciating the above submissions made on behalf of the respondents, it may be seen that Cause (f) of section 45 empowers the Chief Executive to make appointment to a post in Multi-State Co-operative Society in accordance with the rules made under Clause (c) of sub-section (2) of section 42 except the posts in relation to which the power of appointment vests in the Board under Clause (d) of that sub-section. Perusal of clause (d) of sub-section (2) of section 42 and also section 44 of the Act shows that the power to make appointment of a Chief Executive vests in the Board. However, what is material to be seen in dealing with the above submissions is Clause (e) of sub-section (2) of section 42 of the Act which empowers the Board to frame rules regulating the appointment of employees of the Multi-Stale Co-operative Society and the scales of pay, allowances and other conditions of service including disciplinary action against such employees.
85. It is thus clear that under section 42(2)(e) of the Act, the power to frame rules regarding disciplinary action which will include the question of dismissal of an employee is conferred upon the 'Board which can in the exercise of the said power nominate or confer the power of dismissal or the power of taking disciplinary action upon any person or authority other than the Chief Executive of the Multi-State Co-operative Society. No particular procedure is provided for making provisions or rules under the aforesaid Clause (e) either in section 42 or any other provision of the Act. There is also no provision in the Settlement between the respondent No. 1 Bank and the representative of its employees which shows that the power to dismiss or to take disciplinary action is specifically conferred only upon the Chief Executive. The provisions of the General Clauses Act, 1897 provides for cannons of construction of a Statute and the principles underlying section 16 of the General Clauses Act, 1897 are applicable if there is no intention to the contrary. Since the disciplinary powers are regulated as per the provisions made by the Board under Clause (e) of sub-section (2) of section 42 of the Act, it is open to the Board to nominate the disciplinary authority different from the Chief Executive. The submission on behalf of the respondents of statutory bias must, therefore, fail.
86. At any rate, it may be seen that if no person other than the respondent No. 2 could exercise the power of the disciplinary authority in view of the provisions of section 45(f) of the Act, it was necessary for the respondent No. 2 to withdraw from the Departmental Enquiry by relinquishing his duties as a Presenting Officer. He need not have examined himself as a witness also because his deposition is mainly based upon the documents which he had produced during his examination-in-chief and also because the evidence which he bad himself given could have been given appropriately by the Branch Manager of the Ponda Branch where the petitioner was working during the relevant time or any other witness. It is pertinent. To observe that when the respondent No. 2 is charging the petitioner of having knowledge of his appointment as Chief Executive with effect from 25-10-1988 and not raising any objection thereafter, it is surprising to see why the respondent No. 2 should not have protected himself against the charge of bias by disassociating himself with the enquiry when be know that as a Chief Executive he was to be a disciplinary authority in the case. He cannot, therefore, he allowed to raise now the ground of statutory bias in the instant case.
87. The next question to be considered is whether the action of the respondent No. 2 in dismissing the petitioner which suffers from bias is void or voidable. It is well settled that the breach of the principles of natural Justice goes to the root of the jurisdiction of the adjudicating authority (or is akin to the jurisdictional defect) and renders an order or determination void. Meggary, J., in the case of Hounslow L.B.C. v. Twitching G.D. Ltd. (1971) K.Ch. 233. has observed :-
'A decision reached by a tribunal wholly outside its jurisdiction and the incomplete defiance of natural Justice is about as void as any thing can be; but if nobody who is entitled to challenge or question it chooses to do so, it remains in being'.
88. In the off quoted case of Ridge v. Baldwin, (1964) A.C.40, the Watch Committee had dismissed a Chief Constable without observing the principles of natural justice. Lord Reid took the view that the decision of the Watch Committee was a nullity because of failure of natural justice. While rejecting the argument that such a decision was voidable, he has observed :
'Time and again in the cases I have cited it has been stated that a declaration given without regard to the principles of natural justice is void ... I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case'.
Incidentally, it is stated that this case is also material on the question of waiver as Lord Reid held that there was no waiver on the part of the appellant filing an appeal to the Home Secretary against the decision of the Home Secretary which was final and binding.
89. As to the effect of prejudice caused by bias preponderance of view in the English courts as it appears from pages 493 to 495 of the Book on Administrative Law by H.W.R. Wade (6th edn.) and also from pages 273 to 275 of the Book on Judicial Review of Administrative Action (4th edn.) by de Smith is that when the disqualification of bias is present, the decision of the adjudicating authority is void and is a nullity. At page 493 of Wade's Administrative Law, it is stated that where an administrative act or decision is subject to judicial review, as opposed to appeal, the Court can intervene on two grounds only viz. ultra vires, and error on the face of the record, and Since according to him, bias would not appear on the face of the record, the Court necessarily intervenes on the basis that the vitiated act is ultra vires i.e. wholly unauthorised by law and thus void. We may particularly refer to the decision of the Court of Appeal in which the decision suffering from disqualification of bias has been held to be void and a nullity. In the case of Caspor v. Wilcan (1937)2 K.B. 309 a Police Sergeant of Liverpool was dismissed by the Police Constable and his appeal against dismissal was rejected by the Watch Committee. However, the Chief Constable was present with the Watch Committee when they decided the appeal. The Court of Appeal held that the presence of the Chief Constable whose mind was made up in advance and who was in fact the respondent to the appeal was fatal to the validity of the Watch Committee's decision and hence it granted a declaration that its decision was void and a nullity. In view of these authorities, when the effect of bias is that the respondent No. 2 has incapacitated himself in deciding the matter in the instant case his decision would clearly be without jurisdiction and a nullity. Consequently, the order of dismissal passed by him would also be void and a nullity.
90. It is then material to see that, as already pointed out, Since the power dismiss is admittedly a statutory power under section 45(f) of the Act as the power to appoint thereunder carries with it the power to dismiss, the decision of the appointing authority acting as a disciplinary authority to terminate the service of the petitioner has to be made only upon enquiry held in the manner consistent with the principles of natural justice implicit in the statutory power to dismiss and therefore, any order passed without compliance with the principles of natural justice would be infraction of the above statutory power to dismiss i.e. in the instant case section 45(f) of the Act. In this regard we draw assistance from para 11 of the judgment of the Supreme Court in Dr. Bool Chand 's case, : (1968)IILLJ135SC , cited supra, apart from the decisions already adverted to viz. Rudani's case, : (1989)IILLJ324SC and Pandurang's case 1983 Mh. L.J. 1081. Even in Dr. Binapani's case, cited supra, it has been held that if there is a power to decide and determine to the prejudice of a person a duty to act judicially is implicit in the exercise of such power. The order of dismissal of the petitioner is thus in breach of section 45(f) of the Act.
91. The learned Counsel for the petitioner has also urged before us that there is breach of the mandatory provision of Clause 26(e) of the Settlement since, according to him, the respondent No. 2 had not taken into consideration the past record of the petitioner which it is obligatory upon him to do before imposing the punishment of dismissal upon him. The leaned Counsel for the respondents has urged that the consideration of all the requirements of Clause 26(e) is implicit in the order of dismissal passed by the respondent No. 2 and even otherwise the breach of Clause 26(e) cannot be enforced by a writ of mandamus. In view of our decision on the question of bias, it is not necessary for us to consider the above question in the instant writ petition. Similarly, we are also not impressed by the argument made on behalf of the petitioner that the charges were not proved on the basis of the evidence on record except to the extent that on financial loss is actually cause to the Bank by the irregularities committed by the petitioner because of which as we have already pointed out, it was possible for a Disciplinary Authority other than the respondent No. 2 to impose punishment other than the highest punishment of dismissal particularly if the record of service of the petitioner during his long service was clean and unblemished. In this regard it is necessary to notice that there is some truth in the stand of the petitioner that such irregularities were committed by other staff members also for which the Branch Manager, Ponda Branch bad circulated a note on 10-11-1986 to all the staff members.
92. We now consider the question whether the contract of service of the petitioner is specifically enforceable. The law in well settled that although the contract of personal service can not be specifically enforced and a Court normally would not give such a declaration, the above rule is subject to three recognised exceptions viz. (1) Where it is in contravention of the provisions of Article 311 of the Constitution; (2) Where the worker is sought to be reinstated on being dismissed under the industrial law; and (3) Where the statutory body acts in breach or violation of the mandatory provisions of the statute. The learned Counsel for the respondents has relied upon the judgment of the Supreme Court in the case of Vaish College v. Lakshmi Narain, : (1976)IILLJ163SC , to show that the contract of service of the petitioner with the respondent No. 1 which is a private body cannot be specifically enforced. However, we have in the first place shown that the respondent No. 1 is not purely a private body. further we have shown that the Board of Directors of the respondent No. 1 as well as its Chief Executive are statutory functionaries. In particular, we have held that sections 44 and 45 of the Act make the Chief Executive a statutory functionary and, therefore, in regard to the powers and functions conferred upon him under the statute, he is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution.
93. It may then be seen that he has a statutory power to appoint and to dismiss the employees of the Multi-State Co-operative Society like the respondent No. 1 which is not in dispute m the instant case Since the very submission of the respondents that a statutory power cannot be delegated is based upon the same. We have also shown that in exercising the statutory power to dismiss, the duty is cast to act judicially and at any rate to act in a fair and just manner and therefore, the principles of natural justice are implicit or ingrained in the statutory provision under section 45 of the Act. Any violation of the principles of natural justice in passing the order of dismissal would, therefore, result in violation of the statutory provision to dismiss invalidating the order of dismissal. As we have observed such an order is in fact void or a nullity. Once the order is declared as void and nullity and in breach of the mandatory provisions of section 45(f) of the Act which requires the principles of natural Justice to be followed whether the incorporated, under the Settlement or rule or even otherwise the said order of dismissal can be quashed by issue of a writ of certiorari or any other appropriate writ order or direction and the respondents can consequently be directed by issue of a writ in the nature of mandamus to reinstate the petitioner.
94. However, the question which arises for consideration is, although the petitioner may be entitled to be reinstated in service, whether in the facts and circumstances of the instant case the relief of re- instatement should be actually granted to him or not. The learned Counsel for the respondents has urged before us that Since the order of dismissal is quashed because of breach of the principles of natural justice, we should allow the respondents to conduct a proper enquiry and to impose a proper punishment upon the petitioner thereafter. In considering the said contention, it may be seen that the petitioner was dismissed from service long back by an order dated 27-6-1989 and the No. 2 against whom the bias is alleged, still continues to be the Chief Executive of the respondent No. 1 Co-operative Bank. It will not, therefore, be proper to allow the fresh consideration of the case in the facts and circumstances of the instant case, particularly when we are of the view that this is not a fit case for granting reinstatement to the petitioner.
95. As regards the question of relief of re-instatement, it has to be seen that the petitioner has been charged with the charges of committing fraud. misappropriation etc. Although the respondent No. 1 Bank has not suffered any financial loss because petitioner had made good the loss when his salary was paid, there were irregularities committed by the petitioner in his working and in making withdrawals for himself and the customers of the Bank by making fictitious entries or not showing them in the proper books of the Bank taking ad vantage of his post. The main submission on behalf of the petitioner in this regard is that there was such practice in the Bank for preventing which in future a circular dated 10-11-1986 was issued by the Branch Manager of Ponda Branch and hence according to him, no serious misconduct was committed by him.
96. It may be seen that the petitioner is an Accountant which is a post of trust and confidence and in view of the irregularities in the financial transaction committed by him, this is not a fit case for directing his reinstatement. The petitioner would, however, be entitled, after the order of his dismissal is quashed, to the back wages from the date of the order of dismissal till the date of this order and to compensation in lieu of reinstatement The petitioner has been a permanent employee of the Bank Since 1971. At the lime of his dismissal he was 38 years old and therefore, had a long span to go in his service career. Taking all the relevant factors into consideration, and following the standard adopted by the Supreme Court in the case of wrongful termination which was not retrenchment, in our view, the ends of justice would be served by directing the respondent No. 1 to grant compensation in lieu of reinstatement to the petitioner at the rate of one month's pay inclusive of all allowances for each year of service treating it as continuous till the date of this order ignoring the order of his dismissal. See Anglo American Direct Tea Trading Co. v. Workman (1961) II L.LJ. 625. It is made clear that the back wages and the compensation in lieu of reinstatement granted to him, shall be exclusive of the terminal and/or retirement benefits to which he may be entitled under the rules. Since we have granted only back wages and compensation in lieu of reinstatement, even assuming that the contract of personal service in the instant case cannot be specifically enforced in the sense that reinstatement cannot be granted to the petitioner, it can still be held that the amount of back wages and compensation in lieu of reinstatement can represent the amount of compensation payable to toe petitioner on account of his wrongful dismissal.
97. In the result, the instant writ petition is partly allowed. The impugned order of dismissal of the petitioner from service dated 27-6-1989 is quashed and set aside. However, refusing relief of reinstatement to the petitioner, the respondent No. 1 is directed to pay him his back wages from the date of his dismissal till the date of this order and also a compensation in lieu of reinstatement calculated at the rate of one month's salary inclusive of all allowances for each year of service computed as continuous service till the dale of this order ignoring the order of dismissal. The above compensation is exclusive of the terminal and/or retirement benefits to which the petitioner is entitled under the rules. Rule made absolute in the above terms. No costs.