Keya Kar vs State of West Bengal and Others

Biswanath Somadder, J.—Both writ petitions are taken up together since the core issue emanates out of a disciplinary proceeding initiated by the concerned authority of Calcutta Corporation Cooperative Credit Society Limited (hereinafter referred to as the society) against the writ petitioner, who was an employee of the society. So far as WP 1059 of 2006 is concerned, the principal subject-matter of challenge is the order dated 26th June, 2006, whereby penalty was imposed by the disciplinary authority against the writ petitioner who was, till then, employed as a clerk of the society, by reducing her rank to the post of a ''junior clerk'' and fixing her pay at the initial pay scale that of a ''junior clerk''. The writ petitioner also challenged an order dated 8th March, 2006, issued by the Chairman of the society, rejecting her prayer for enhancement of subsistence allowance to 75 per cent, of her salary. The subsequent writ petition, being WP 1388 of 2008, was filed on the basis of the liberty granted to the writ petitioner by a Division Bench of this Court, in terms of an order dated 14th May, 2008, in APOT 549 of 2007; GA 3280 of 2007, arising out of an order dated 11th September, 2007, passed by this Court in WP 1059 of 2006. While disposing of the appeal, the Division Bench granted liberty to the writ petitioner to challenge the second disciplinary proceeding, as well as the second order of punishment, being the order of her dismissal from service. The relevant facts of the case, which can be culled out from the pleadings and orders passed earlier, are as follows:

The writ petitioner, who was working as a clerk of the society, was proceeded against departmentally. The departmental proceeding culminated in a final order of punishment dated 26th June, 2006, whereby, the petitioner was reduced in rank and directed to discharge the duties of a ''junior clerk''. The disciplinary proceeding, including the order of punishment, was challenged by her in WP 1059 of 2006.

The petitioner did not join as a ''junior clerk'' in terms of the order of punishment dated 26th June, 2006, which resulted in a fresh disciplinary proceeding being initiated against her by the society. The fresh disciplinary proceeding was sought to be challenged by the writ petitioner by filing an interlocutory application in connection with WP 1059 of 2006.

By an order dated 11th September, 2007, the Court rejected the prayer of the petitioner for staying of the fresh disciplinary proceeding while observing that the said proceeding was not the subject-matter of the pending writ petition, being WP 1059 of 2006. The Court further observed in the order dated 11th September, 2007 that if the writ petitioner had any grievance in regard to such proceeding, it was for her to challenge the same before an appropriate forum by initiating a fresh proceeding, if so advised. The Court also gave liberty to the writ petitioner to join the post of ''junior clerk'', if so advised. This order dated 11th September, 2007 was carried in appeal by the writ petitioner, which was taken up for consideration by a Division Bench of this Court, which passed an order dated 14th May, 2008, affirming the order passed by the learned single Judge dated 11th September, 2007. The Division Bench, however, took note of the fact that the second disciplinary proceeding ultimately had culminated in an order passed by the disciplinary authority, imposing punishment of her dismissal from service.

This gave rise to the second writ petition, being WP 1388 of 2008, wherein, the petitioner has challenged the order of her dismissal from service.

The learned advocate for the petitioner raised a point that while dismissing the writ petitioner from service, the disciplinary authority did not follow the procedure established by law. In this context, the learned advocate for the petitioner has relied on the proviso to Rule 48(f) of the West Bengal Co-operative Societies Rules, 1987, in order to submit that the society did not give the petitioner a reasonable opportunity to make representation on the penalty proposed. He further submitted that it was clearly provided under the proviso that no employee of a co-operative society shall be dismissed or removed from service until he/ she was given a reasonable opportunity to make a representation on the penalty proposed. In this context, he relied on the judgment of the Supreme Court rendered in the case of Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, and submitted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. He submitted that it would be clear from the records that the disciplinary authority proceeded with a closed mind and disregarded the statutory Rules governing the process of dismissal of an employee of a co-operative society. He also submitted that all along the writ petitioner was subject to severe and harsh treatment by the disciplinary authority and even the initial punishment of reduction of her rank from clerk to junior clerk was disproportionate to the charges brought against her by the disciplinary authority. According to the learned advocate for the petitioner, the initial charge of misconduct against the writ petitioner was a failure on her part to update the loan ledger of 2003-04 till 29th May, 2004. He submitted that his client was assigned the duty of maintaining the loan ledger from 9th June, 2001. There was no allegation against his client with regard to failure on her part to maintain the ledger account up to the year 2002-03. Such allegation was made against her only for the period as stated above. He further submitted that while replying to the charges levelled against her, the petitioner had categorically stated in her defence that the concerned authority was aware of the fact that she was facing a severe eye problem since 1999, for which she had rushed to Chennai for treatment and even then she used to maintain the ledger accounts by attending office regularly and working beyond the office hours till 9.30 p.m. Learned advocate for the petitioner also referred to a copy of a document annexed to WP 1059 of 2006, being a letter dated 29th January, 2004, written by the writ petitioner and addressed to the Secretary of the society. He submitted that the petitioner, because of her ophthalmic problems, had appealed for her transfer from the ledger Section and requested the concerned authority to allot her some light job. Instead of complying with such request, the concerned authority did not transfer her from the ledger account, rather refused to acknowledge her serious eye condition. According to the learned advocate for the petitioner, the entire proceeding which culminated in her being dismissed from service, was a mala fide exercise of power and disproportionate to the charge which was levelled against her.

The learned advocate representing the society, on the other hand, submitted that the petitioner had all along disregarded her employer and her conduct - which would be evident from the disciplinary proceeding - was an ample testimony to this fact. He submitted that the petitioner was dismissed from service since in spite of specific request made to her to join duty, by a letter dated 11th July, 2006, she did not do so and remained absent. He referred to the additional affidavit-in-opposition filed on behalf of his client and submitted that the petitioner was repeatedly requested to join her duties, but she deliberately refrained from doing so. By an order dated 17th November, 2006, she was informed that if she did not join her duty within 7 (seven) days from the date of receipt of the said letter, disciplinary action would be taken against her. Even then, she refrained from joining her post. He also submitted that in the affidavit-in-op-position, every allegation made by the writ petitioner had been denied and, in particular, it was denied that the order of dismissal of service was the outcome of a perfunctory enquiry, which was without jurisdiction. It was incumbent upon the petitioner to join her post and also participate in the disciplinary proceeding in view of the repeated requests made by the concerned respondent authority. The petitioner was allowed inspection of relevant documents and there was no illegality, irrationality or procedural impropriety on the part of the disciplinary authority while conducting the disciplinary proceeding, which ultimately led to her dismissal from service. The learned advocate for the society has relied on two judgments of the Hon''ble Supreme Court, which are as follows:

I. New India Assurance Co. Ltd. Vs. Vipin Behari Lal Srivastava,

II Union of India (UOI) and Others Vs. Alok Kumar,

After considering the submissions made by the learned advocates for the parties and taking into consideration the facts and circumstances of the instant case, it appears that the primary issue which requires to be considered is whether the order of dismissal of the writ petitioner dated 15th October, 2007, is in accordance with the provisions of the applicable rule. Rule 48 of the West Bengal Cooperative Societies Rules, 1987, empowers the Board of a co-operative society to have full control over the administration and business of a co-operative society in respect of such matters, as provided under the said rule. Rule 48(f) empowers the Board of a co-operative society to appoint, discharge or to dismiss or to remove employees of such society. However, the said provision of law contains a proviso thereunder, which reads as follows:

(f) to appoint, discharge or to dismiss or to remove employees of the society:

Provided that a no employee of a co-operative society shall be dismissed or removed from service except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges, and where it is proposed, after such inquiry, to dismiss or remove him, until he has been given a reasonable opportunity of making representation on the penalty proposed.

It is clear from a plain reading of the proviso quoted above that in a case where there is a proposal to dismiss or remove an employee of a co-operative society from his/her service, such proposal can only be given effect to after giving a reasonable opportunity to the concerned employee to make representation on the penalty proposed to be inflicted. It is admitted position that in the facts and circumstances of the instant case, no such opportunity was given to the petitioner to make any representation on the penalty proposed, i.e. her dismissal from service. The order of the disciplinary authority, dated 15th October, 2007, which is impugned in WP 1388 of 2008, does not contain anything to indicate that the proviso to Rule 48(0 has been adhered to, prior to issuance of the said order. In view of the disciplinary authority flouting the mandatory provision, as specifically contained in the proviso to the statutory rule governing the disciplinary proceeding, the two judgments relied on by the learned advocate appearing on behalf of the society cannot have any manner of application. Rather, the following observations made by the Supreme Court relying on several of its earlier judgments - in Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, are squarely applicable in the facts of the instant case:--

A century ago, in Taylor v. Taylor (1875) 1 Ch D 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in AIR 1936 253 (Privy Council) and later by this Court in several cases, Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, , Deep Chand Vs. The State of Rajasthan, to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner. Maxwell''s Interpretation of Statutes, 11th Edn., pp. 362-363." The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of S. 5(3)(b).

In such circumstances, this Court does not find any hesitation to hold that the order of dismissal of the writ petitioner from her service dated 15th October, 2007, is bad in law and is liable to be set aside and is accordingly set aside.

So far as the subject-matter of challenge in respect of WP 1059 of 2006 is concerned which stands immediately revived in view of the above order - it appears that the Board of Directors, being the disciplinary authority, has already passed an order dated 26th June, 2006, whereby the rank and pay of the writ petitioner has been reduced. Since the said order is appealable under the provision of paragraph 15 of appendix to Chapter 6 of the West Bengal Co-operative Societies Rules, 1987, it will be open to the petitioner to approach the statutory appellate authority of the society, being the general body of its members, seeking reconsideration of her case on the ground of extenuating circumstances caused by her serious eye condition, which she has referred to in detail in the disciplinary proceeding. Both writ petitions stand disposed of accordingly.