Shipra Shome Vs. Government of Meghalaya and ors. - Court Judgment

Excerpt:
- - not being satisfied, the bank appointed the respondent no. in the event of the failure of the bank, the registrar of co-operative society is empowered to dissolve the managing committee and also is entitled to form an ad-hoc committee/body to run the affairs of the bank with the officials of the registrar, with a direction to hold the a. h.n. sarma, j.1. dismissal of the petitioner from service vide office order no. 7 of 2001 dated 27.7.01 by the respondent/bank is the subject matter of challenge in this writ petition.2. i have heard mr. s.r. sen, learned sr. counsel assisted by mrs. p.d. bujarbaruah, learned counsel for the petitioner and mr. v.k. jindal, learned sr. counsel appearing for the respondents no. 3 to 9.3. the petitioner joined in the service in the respondent bank initially as assistant-cum-typist as per appointment order dated 7.6.75 and in course of time, she was duly promoted to the rank of secretary of the bank from 16.8.96. but in later part of october, 2000, the petitioner was served with a notice to explain certain irregularities alleged to have been committed by her and on 13.11.2000 the petitioner.....

Judgment:

H.N. Sarma, J.

1. Dismissal of the petitioner from service vide Office Order No. 7 of 2001 dated 27.7.01 by the respondent/bank is the subject matter of challenge in this writ petition.

2. I have heard Mr. S.R. Sen, learned Sr. counsel assisted by Mrs. P.D. Bujarbaruah, learned Counsel for the petitioner and Mr. V.K. Jindal, learned Sr. Counsel appearing for the respondents No. 3 to 9.

3. The petitioner joined in the service in the respondent bank initially as Assistant-cum-Typist as per appointment order dated 7.6.75 and in course of time, she was duly promoted to the rank of Secretary of the bank from 16.8.96. But in later part of October, 2000, the petitioner was served with a notice to explain certain irregularities alleged to have been committed by her and on 13.11.2000 the petitioner was suspended from service, pending enquiry.

4. A charge memo was issued to the petitioner mentioning six different charges on the allegations contained therein. Though initially the petitioner prayed for furnishing certain documents for the effective reply of the charges levelled against her the same was not considered and the respondent/bank decided to hold enquiry against the petitioner. At this stage, the petitioner replied to the charges which was accepted by the authority. Not being satisfied, the bank appointed the Respondent No. 7 as an Enquiry Officer to conduct the enquiry but no presenting officer was appointed. In the enquiry out of 6 Nos. of charges, the Charge Nos. 1, 3 and 6 were held to be proved by the Enquiry Officer. For ready reference, the aforesaid charges No. 1, 3 and 6 are quoted herein below:

1. It is found that a sum of Rs. 39,697.00 was kept in the sundry account being the collection of cheques of Shri Ningjan Sangma on 13.6.2000. Out of which a sum of Rs. 27,393.00 was debited on 20.6.2000 and Rs. 25,177.00 was adjusted towards overdraft loan account No. 14.12.93 of Shri Ningjan Sangma and a sum of Rs. 216.00 was adjusted to profit and loss account and the balance of Rs. 2000.00 (rupees two thousand) was credited to your Savings Bank Account No. 4/78 (Personal) vide Transfer Scroll No. 30 on 20.5.2000. And thereby you have Cheated the customers later on that amount of Rs. 2000.00 was withdrawn by you on 20.6.2000 vide withdrawal Form No. 45521 for your personal use.

3. During enquiry conducted by Shri Borpathson S. Daring, Director of the Bank, into the matters of Shri Ningjan Sangma it was reported by the Hon'ble Director that you have not co-operated with him rather avoided.

6. You have refused to accept letter No. TUCB.57/SS/Expln./2000/2449 dated 12.10.2000 issued by the undersigned when taken to you by office peon. You are reported to have gone through the contents of the letter and then declined to accept it. Thereupon it was against sought to be served upon you in office by Sub-Accountant, Shri Sheip Lohar. But you have again refused to accept the letter.

This amounts to gross indiscipline and gross in sub-ordination. By such act of in sub-ordination, you have displayed utter dis-respect to the undersigned and have also undermined the dignity of the Bank.

5. The petitioner alleges that the copy of the said enquiry report was not furnished to her and accordingly she could not file an appeal before the authority. The Board of Directors vide impugned Office Order No. 7 of 2001 accepting the enquiry report, dismissed the petitioner from service in terms of the resolution dated 27.7.01. The said decision of the bank and the enquiry proceeding have been challenged in this writ petition.

6. The petition is resisted by the respondent/bank by filing counters. First counter is filed raising a preliminary objection relating to the maintainability of the writ petition to the effect that the respondent/bank is not a State within the meaning of Article 12 of the Constitution and hence the writ petition is not maintainable. By subsequent affidavit, the bank has replied on the merit of the case. It is contended in the counter that the bank has duly conducted the enquiry and copy of the enquiry report was also furnished to her but she refused to accept the same that there is no fault in the departmental enquiry which requires no interference by this Court. It is also strenuously submitted by Mr. Jindal, learned Sr. Counsel for the respondent/bank that the writ petition is not maintainable, as it does not attract Article 12 of the Constitution.

7. I have considered the rival submissions made by the learned Counsel for the parties.

8. During the course of the argument, it is contended by Mr. S.R. Sen, learned Sr. Counsel for the petitioner that the enquiry in question was conducted in violation of the basic principles of Natural Justice without providing any effective opportunity of hearing to the petitioner. It is contended that though in the enquiry report, which could be seen from the counter filed by the bank, it is stated that the statements of the witnesses have been recorded and considered by the Enquiry Officer and documentary evidence were accepted, in fact, nothing short of this was done in the so called enquiry. It is further contended that no statements of witnesses were recorded in her presence nor the petitioner was provided with any opportunity to cross-examine the witnesses. So far as the Charge No. 1 is concerned, it is contended that the petitioner was duly authorized by the Chairman of the Bank to go Baghmara from Tura to collect the amount of the customer in question and she was authorized to deduct the expenditure incurred for up and down from Tura to Baghmara. In respect of the said contention, Mr. Sen has relied on the order of Chairman dated 25.3.2000 annexed as Annexure-14. The learned Counsel has also relied on the note of the Chairman of the Bank dated 5.3.2000 Annexure-XIX. In view of the aforesaid authority coupled with the letter of the customer dated 2.8.2000 by which he registered his no objection relating to the allegation against the petitioner in adjusting an amount of Rs. 2,000/-. It is submitted by Mr. Sen that Charge No. 1 has no legs to stand. As regards the Charge No. 3, it is alleged that the petitioner did not co-operate during the course of the preliminary enquiry but the same is most vague one there being no specific allegation against the petitioner as to how and in what manner she did not co-operate during the course of preliminary enquiry. It is further contended that even from the findings of the enquiry officer on the said charge it could be found that the petitioner handed over all the necessary documents and records in connection with the enquiry and no specific question having been asked t6 her, the charge of non-co-operation is not maintainable. It is also contended that the said charge is held to have been proved on the basis of statements of the witnesses namely, Sri Daring, Sri Theosan Ch. Marak and Smti. Purnima Ch. Marak, in fact, no such statement of witnesses was recorded during the court of enquiry. Similar submission has been made as regard Charge No. 6 to the effect that statement of not a single witness was recorded by the enquiry officer and it is not known whether the Enquiry Officer could consider those statements.

9. However, the main thrust of argument of Mr. Sen is that there has been a total violation of principle of natural justice in conducting the enquiry and particularly for not providing the report of the enquiry officer to the petitioner, a valuable right of the petitioner has been abridged.

10. Mr. Jindal, learned Sr. Counsel as indicated above has raised preliminary issue about non-maintainability of this writ petition under Article 226 of the Constitution of India on the ground that the respondent/Bank being a co-operative society and not having financially, functionally and administratively dominated or under the control of the Government, the respondent/bank cannot be said to be a 'State' or 'Other authority' within the meaning of Article 12 of the Constitution of India and as such the writ petition is not maintainable. In support of his argument, Mr. Jindal has referred the statement made in first affidavit dated 7.9.01 and documents annexed thereto to which again a rejoinder affidavit was filed by the petitioner countering those statements.

11. In support of his contention, Mr. Jindal has referred to the following decisions:

i) R.D. Shetty v. International Airports Authority of India : (1979)IILLJ217SC .

ii) Ajay Hasia v. Khalid Majid AIR 1985 SC 487.

iii) Chandramohan Khanna v. National Council of Educational Research & Training, : (1992)ILLJ331SC .

iv) Sri Konaseema Cooperative Central Bank Ltd. Amalapurem and Ors. v. N. Seetharama Raju AIR 1990 AP 171.

v)2000 GLR(2)154.

vi) 1989 GLR (1)424

vii) : [1984]1SCR767 .

viii) AIR 1990 AP 171

ix) M/s Radhakrishna Agarwal v. State of Bihar : [1977]3SCR249 .

x) State of Punjab v. Balbir Singh AIR 1977 SC 1717

xi) LIC of India v. Escorts Ltd. : 1986(8)ECC189 .

xii) AIR 1962 Mad. 162.

12. During the course of hearing, the learned Counsel for the respondents has also produced the original record relating to the enquiry conducted against the petitioner. On going through the record of enquiry the statement of different witnesses as mentioned in the enquiry report were not found to be recorded. No order sheet has been maintained by the Enquiry Officer. The record does not disclose as to when such enquiry was held and whether the petitioner was offered any opportunity to defend her case. Upon examination of the record I do not find that the petitioner was heard on the point during the course of enquiry. No Presenting Officer was also appointed and as such it is also not known how documents stated to have been exhausted during the course of enquiry were admitted and exhibited by the enquiry officer. The role of Enquiry Officer in a departmental enquiry must be an impartial one. He is not permitted to take role of the prosecution and in the instant case it discloses from the record of the enquiry that only one man conducted the entire enquiry i.e., by the Enquiry Officer himself who also took the role of the management. On being pointed to the aforesaid deficiency in conducting the enquiry, Mr. Jindal, has fairly submitted that whatever record he had, he has furnished before the court and the court is entitled to form its opinion.

13. Mr. Sen, answering on the point of maintainability of this writ petition, relies on the following decisions of the Apex Court.

i) : (2005)ILLJ544SC (V.K. Srivastava v. U.P. Rajya Karmachari Kalyan Nigam and Anr.

ii) : [2002]3SCR100 (P. K. Biswas v. Indian Institute of Chemical Biology).

iii) : AIR2005SC2677 (Zee Telefilms Ltd. and Anr. v. Union of India and Ors.)

iv) 1993 (2) GLJ 51 (Full Bench) Sahabuddin Choudhury v. State of Assam and Ors.

14. The learned Counsel has also relied on the statement made along with the documents filed in the counter affidavit controverting the preliminary issue. The test for determining under the provision of Article 12 of the Constitution of India whether an institution is 'State' or 'Other authorities' have been laid down by the Apex Court in the case of Ajay Hasia (supra). The same also have been reconsidered by the Apex Court in the case of P.K. Biswas (supra). It also came for further consideration before the Apex Court in the case of Zee Telefilms Ltd. (supra). On the touchstone of the ratio of the cases cited at the bar the issue about the maintainability of the writ petition under Article 12 of the Constitution of India is to be examined.

15. Ratio of the various decision of the Apex Court and interpretation of Article 12 go to show that on the basis of the related facts if it is established that the body is financially, functionally and administratively dominated by or under the control of the Govt. and such control must be in particular to that body and must be a deep and pervasive one would fall within the categories of 'State' or 'Other authorities'. It is also to be noted that some regulatory control whether by any statute or otherwise, would not be enough to make the body a part of the State.

16. From the factual matrix available made before the court it is to be found that the respondent/bank is a co-operative society registered under the Meghalaya Co-operative Society Act doing banking business under the liscence and the authority issued by the Reserve Bank of India and the Reserve Bank of India has the direct and specific control in respect of the banking business carried on by the respondent/bank in terms of the specific provisions contained in the Banking Regulation Act, 1949. Constitution and byelaws of the bank discloses that the management of the bank is vested to the Board of Directors which consist of not more than 13 members out of which the State Govt. is entitled nominate not more than 1/3rd or 3 (three) Directors to the Board, which ever is less. During the relevant time the share capital of the bank was Rs. 19.17 lacs out of which the State Government's contribution was Rs. 12.85 lacs.

17. The respondent/bank being the Cooperative Society is required to hold the periodical Annual General Meeting and elect its member to the Managing Committee/Administrative Board i.e., to form the Board of Director under the provisions of Section 32 of the Meghalaya Co-operative Societies Act. In the event of the failure of the Bank, the Registrar of Co-operative Society is empowered to dissolve the Managing Committee and also is entitled to form an ad-hoc committee/body to run the affairs of the Bank with the officials of the Registrar, with a direction to hold the A.G.M. of the Bank within a specified period. Under the provisions of the Rules framed under the Act. The proceedings and minutes of the meetings of the General Assemble is required to be submitted to the Registrar of the Co-operative Societies for necessary approval and until such approval is obtained, the proceeding of the said meeting would not be valid. The Registrar has also got the power to conduct the periodical audit of the accounts of the Bank and it has also got the appellate jurisdiction over the decision of the bank on certain matters as contained in Section 80 of the Act. Under Section 63 of the Act, the Registrar is authorized to decide the dispute touching the business of the society, other than the dispute regarding disciplinary action taken by the Society against an employee or to a liquidator of the society for necessary adjudication. Reference of dispute to Registrar has been provided under Section 64 of the Act.

18. From the above provisions of the Act and Rules it can be found that the Registrar of the Co-operative Society is the philosopher and guide of a Registered Co-operative Society. In the instant case, the State Govt. during the relevant time, had more than 65% of the share capital in the bank and more than 20% of the members in the Board of Directors. In view of the above factual and legal position, the preliminary objection raised by Mr. Jindal stands overruled.

19. As indicated above, Mr. Jindal has also produced the register stated to be dispatch register specifically maintained by the Bank for the petitioner to substantiate that the enquiry report was forwarded to the petitioner by peon book. Examination of the said register shows that the same is neither paginated nor certified by any officer of the Bank it is important to note herein that the said dispatch register was, in fact, made for the purpose of petitioner only. Upon examination of the said register, I do not find that the same is free from doubt. In the said register last entry is dated 20.04.01 and in the third column i.e., column under head 'contents' it is written that the copy of the enquiry report of Shri G.D. Sangma but the remark column is blank. It does not disclose whether said letter/copy was refused to accept by the petitioner as contended by the bank in their proceeding. In the event of such refusal there ought to have been record in the remark column to that effect but the same is lacking. On such consideration, I do not find that the stand of the bank that the copy of the enquiry report was served or deemed to be served upon the petitioner is a correct one. Consequently, the grievance of the petitioner that the enquiry report was not furnished to her is to be accepted.

20. Going through the records made available to the court including the pleadings of the parties, more particularly considering the manner and method of conducting the enquiry which is glaring from the inquiry record of the bank, it can safely be held that the said enquiry was conducted in gross violation of the principle of natural justice. The petitioner, not having been served with the copy of the enquiry report, was also deprived of from filing her appeal before the appellate authority. The contents of the enquiry report is not at all substantiated by the record of the enquiry and there is no basis or materials to hold in the manner as held by the enquiry officer.

21. In view of the above discussion, the aforesaid impugned enquiry report stands set aside and quashed. Consequently, the order of dismissal dated 27.7.01 passed on the basis of the said report also stands set aside and quashed. The petitioner shall be re-instated in her service but her continuation in service would be only if she has not attained the age of superannuation in the meantime as per provisions of the byelaws of the bank. It is, however, remain open for the bank to conduct a de-novo enquiry against the petitioner providing all opportunity of hearing to her from the stage of appointment of the enquiry officer, if so advised and felt needed.

22. The writ petition is allowed to the extent as indicated above. It is needless to say that in the event the bank desires to hold such further inquiry as indicated above, the petitioner shall cooperate with such an enquiry.