Anandamoy Mazumdar vs State of West Bengal

Satyagrata Sinha, J.—The Petitioner, in this application has, inter alia, prayed for issuance of a writ in the nature of mandamus directing the Respondents to recall or withdraw or to rescind the charge-sheet dated September 13, 1992, and further commending to act strictly in accordance with law. The Petitioner is a Branch Manager of the West Bengal State Co-operative Bank Ltd.

A charge-sheet had been issued on him wherein various acts of misconduct on his part had been enumerated. Mr. Chattopadhyay, learned Counsel on behalf of the Petitioner, has referred to three contentions in support of this application. The learned Counsel submits that on the regulations framed by the Respondent Bank they are bound to act thereupon. The learned Counsel submits that misconduct has not been defined. He has drawn my attention to Regulations 39 to 43 and submits that therein specific acts of misconduct having not been enumerated the impugned charge-sheet must be held to be bad in law. The learned Counsel next contended that there has been a gross violation of Regulation 47 inasmuch as the Petitioner has not been given any notice to show cause. The learned Counsel next contains that from a perusal of the letter dated August 28/29, 1991, as contained in Annex. ''A'' to the writ application, it would appear that the Respondents have been proceeding with a closed mind and, thus, the entire proceeding is vitiated in law.

The Respondent Bank is a Co-operative Society. The Regulations framed by it do not have any force of law.

Moreover, from a perusal of the writ application it appears that the main question upon which the writ application was filed was that in contravention of Reg.48 the disciplinary proceeding has been initiated without obtaining the proper permission of the Chairman. Mr. Chowdhury, learned Counsel appearing on behalf of the Respondent Bank, submits that such a permission had been granted by the Chairman.

So far as the contention with regard to violation of Reg. 48 is concerned, in my opinion, the same has no force. It is now well-settled by reasons of various decisions of the Supreme Court of India that the word ''misconduct'' is a generic term, whereas specific acts of misconduct are species thereof. Where no specific misconduct has been enumerated in any regulation the .generic term can be made to apply for the purpose of initiating a disciplinary proceeding as against a delinquent employee. Reference in this connection may be made to Probodh Bhowmick v. The State of West Bengal 1994 (2) Cri. L.J. 456

So far as the contention of the learned Counsel to the effect that in initiating the disciplinary proceeding the Managing Director has acted in excess of his authority, the same has, therefore no substance.

So far as the contention of the learned Counsel with regard to the violation of Reg. 47 is concerned, in my opinion, the same also does not have any force. In this case, the Petitioner was given an opportunity to show cause as would be evident from the letter dated August 28/29, 1991.

A preliminary enquiry was initiated as against the Petitioner. He was directed to submit a show-cause. He failed to do it despite several opportunities having been given to him.

Thereafter, the disciplinary proceeding had been initiated. Regulation 47, in my opinion, has to be read as a whole. The reason for giving a show-cause notice is as to why a punishment as contemplated under Reg. 46 shall not be imposed on him. By reason of the letter dated June 9, 1992, a charge-sheet has been drawn as against the Petitioner and an enquiry officer has been appointed. The misconducts alleged against the Petitioner have been specified. The imputations of allegations against the Petitioner have also been stated in details. Thus, there cannot be any doubt that there has been a substantial compliance of Regulation 46 aforementioned.

So far as the contention of Mr. Chattopadhyay to the effect that the Respondents have proceeded with closed mind, has also no substance. It is true that in his letter dated August 28/29, 1991, the Managing Director stated that the Petitioner committed several acts as stated therein, but in my opinion the entire letter has to be read as a whole inasmuch as by reason of the said letter the Petitioner was asked to show cause and submit his explanation within 30 days from the date of receipt of the said letter.

The very fact that a notice to show cause was issued as against the Petitioner goes to show that the Respondents did not proceed with a closed mind. It is evident that despite the fact that the Petitioner did not file any show cause, the disciplinary proceeding had been initiated against the Petitioner. In the said disciplinary proceeding, the Petitioner could raise all questions.

In fact, the disciplinary proceedings have been concluded and an order of dismissal had already been issued as against the Petitioner. However, the said order of dismissal could be given effect to in view of the interim order dated April 6, 1993.

A disciplinary proceeding is said to be a quasf-criminal in nature.

Even in terms of the Code of Criminal Procedure charges are framed against an accused after the Magistrate is of the opinion that there is ground for presuming that the accused had committed an offence triable by a Magistrate. It may be stated that while framing a charge u/s 304, Indian Penal Code, the Magistrate in Form 32 states�

That you, on or about...day of...at...committed culpable homicide not amounting to murder causing the death of and thereby committed an offence punishable u/s 304, Indian Penal Code, and within the cognizance of the Code. Thus, by using the Phraseology that the delinquent officer has committed a misconduct, in my opinion, it cannot be said that the disciplinary authority has prejudged the issue so as to vitiate the entire departmental proceeding.

Apart from the aforementioned facts, the Cooperative Society being not a State within the meaning of Article 12 of the Constitution of India no writ application is maintainable. Moreover, when the writ application was filed the Petitioner did not have any cause of action inasmuch as, no penalty had been imposed upon him. In the case Chanan Singh Vs. Registrar, Co-op. Societies, Punjab and Others, the Supreme Court of India clearly held that when no pending action had been taken the writ petition would not be maintainable.

For the reasons aforementioned, I am of the opinion that no case has been made out for exercising my jurisdiction under Article 226 of the Constitution of India. This writ application is, accordingly, dismissed. However, it goes without saying that it would be open fro the Petitioner to question the order of dismissal passed against him by the Respondent Bank before an appropriate forum.