Debi Prosad Dey JUDGMENT
Debi Prosad Dey, J.
1. The petitioner has been working as Assistant Accountant of the Suri Friend's Union Co-operative Bank Limited at Suri, Birbhum, a registered cooperative society and his service has been terminated by resolution No. 19 passed by the General meeting of the Suri Friend's Union Co-operative Societies Bank Limited held on 21st day of February, 2016.
2. The petitioner has filed this writ application with the specific prayer that the resolution No. 19 passed in the 63rd Annual General meeting of the Suri Friend's Union Co-operative Bank Limited, Suri, Birbhum held on 21st February, 2016 be set aside and the Suri Friend's Union Co-operative bank Limited(herein after referred as bank only) be directed to rehear the appeal preferred by the petitioner against the decision of Board of Directors.
3. It is apparent from the averments made in the writ application that a proceeding was drawn up against the petitioner and the petitioner was found guilty by the enquiry officer. Thereafter, the matter was referred to the Board of Directors of the said bank for consideration and ultimately the chairman of Board of Directors of the said bank as per resolution of the board dated 18th July, 2013 informed the petitioner that his service was terminated with effect from 20th July, 2013 for his misconduct.
4. The petitioner thereafter moved a writ application being WP No. 18343(W) of 2013 before this Court and the following order was passed by the High Court in the aforesaid writ application:
"Affidavit of service filed today be kept on record. As prayed for, leave granted to the petitioner to file supplementary affidavit. Let copies of the supplementary affidavit be served on the Learned advocates for the respondents.
It is submitted by Bandopadhyay, learned advocate for the petitioner on instruction that his client seeks leave to file an appeal under Clause 15(2) of Rule 106 of the West Bengal Co-operative Societies Rules, 2011 against the order of dismissal which may be directed to be considered sympathetically.
In view of the submission advanced, the petitioner is at liberty to file appeal before the General Body of Members and if filed, such appeal shall be considered by the General Body sympathetically.
It is made clear pendency of the writ petition shall not prevent the General Body of members to consider the appeal filed by the petitioner.
The point of maintainability of the writ application raised by the learned advocate for the respondents is kept open.
Liberty to mention upon notice.
(Soumitra Pal, J.)"
5. During the pendency of the said writ application another writ application being No. WP 18880(W) of 2014 was filed by the present petitioner and the said writ application was also disposed of on 20th August, 2014 by this Court holding inter alia that pursuant to the direction given by this Court in writ application No. 18343(W) of 2013 the petitioner has already preferred an appeal before the appropriate authority and accordingly there was absolutely no scope to interfere with such order. Such writ application was also disposed of by this Court. Writ petition No. 18343(W) of 2013 has been finally disposed of on 16.12.2015 on the ground that the appellate authority would consider the appeal in accordance with law.
6. Another writ application being No. WP 15977(W) of 2014 was filed by the present petitioner and the said writ application was also disposed of with the observation that no effective order is required to be passed in the writ application since the matter has been dealt with in WP No. 18880(W) of 2014.
The petitioner has filed this writ application stating inter alia that
"i) Charge sheet is not sustainable,
ii) Order of dismissal dated 20th July, 2013 is disproportionate.
iii) Copy of Enquiry Report has not been supplied.
iv) Principles of Natural Justice violated.
v) No personal hearing in appeal was provided in the general meeting of the bank."
Respondent No. 5 namely the Chairman of the Bank has only contested this case by filing affidavit in opposition. Respondent No. 5 has specifically stated that the petitioner shall be estopped from challenging the charge sheet, inquiry report and even the order of dismissal since the petitioner himself did not pray for such reliefs while filing writ application No. WP 18343(W) of 2013, WP No. 18880(W) of 2014 and WP No. 15977(W) of 2014. Secondly, in terms of the direction given by the Hon'ble High Court the matter was again considered in the general body meeting of the bank and thereafter the appeal filed by the petitioner has been dismissed. It has also been stated that there was absolutely no scope of any personal hearing of the petitioner in the general body meeting and the presence of the petitioner was not at all required at the time of disposing such appeal filed by the petitioner. Lastly, the maintainability of the writ application has been challenged on the ground that the co-operative society does not come within the purview of "State" as contemplated under Article 12 of the Constitution of India.
7. The Division Bench of our High Court in a decision reported in MANU/WB/0778/2008 : 2009(1) CHN 573(Bhabani Adhikari v. West Bengal State Co-operative Bank Limited and Ors.) has specifically observed as follows:
"(iii) If there is a breach of a statutory duty which is made the foundation of a writ petition against an employer which is not otherwise amenable to the writ jurisdiction, then the writ petition would be entertained and it has to be assessed on merits as to whether there is any breach or not. If it is found that no case of breach of a statutory provision is made out, an order of dismissal of the writ petition on merits would ensue. There is a distinction between an action not being maintainable and an action being liable to be dismissed. In the first case the Court cannot assume jurisdiction; in the second the Court has to adjudicate on merit, whatever may be the degree, to arrive at a conclusion."
8. On scrutiny of the writ petition it transpires that the petitioner has simply stated that the order of dismissal is contrary to Clause vi of Appendix 2 Chapter 5 of West Bengal Co-operatives Rule, 2011. That goes to show that atleast some violation of Co-operative Societies Rules has been pleaded in the writ application. Therefore, in view of the decision referred to herein above it cannot be said that the instant writ application is not maintainable. It is necessary to decide the writ application on merit in order to ascertain if the petitioner has been able to show any violation of the West Bengal Co-operatives Societies Act and Rules framed thereunder. It goes without saying that if the petitioner fails to show any violation of the aforesaid Act, the instant writ application would be not maintainable in view of the decision reported in MANU/WB/0778/2008 : 2009(1) CHN 573 (Bhabani Adhikary v. West Bengal State Co-operative Bank Limited).
9. It appears from order dated 1st August, 2013 passed in WP 18343(W) of 2013 that the petitioner did not press the entire writ application in respect of defects in the charge sheet, report of enquiry officer, alleged arbitrariness on the part of co-operative bank but has simply prayed for the leave of the Court to file an appeal before the General Body Meeting of such bank. This Court has duly disposed of such writ application in terms of such prayer of the petitioner. The petitioner has again raised such matters with respect to the defect in the enquiry report, charge sheet and arbitrariness on the part of the administrative authority of the bank.
10. In view of the settled principle of "res-judicata" the petitioner will not be permitted to raise such points once again in a subsequent writ when the petitioner has already discarded such reliefs in the earlier writ applications. Therefore, the only point for consideration is whether the appeal preferred by the petitioner has been disposed of in accordance with law in the General Body Meeting in the 63rd Annual General meeting of the Suri Friend's Union Co-operative Bank Limited, held on 21st February, 2016. Learned Advocate appearing on behalf of the petitioner contended that another opportunity of hearing be given to the petitioner so that he may place his case before the General Body Meeting of the Bank.
11. On scrutiny of the documents annexed with the writ application and the resolution No. 19 of the 63rd Annual General Meeting of the Bank it appears that charges were framed against the petitioner in terms of Rule 106, Appendix 2 Chapter v Clause 13 and 14 of WBCS Rules 2011 and in tune with the bylaws of the bank. The petitioner did not challenge the said rules. On the contrary, the petitioner has pleaded guilty in respect of each and every charge before the enquiry officer in black and white. The petitioner has also accepted his liabilities in respect of each and every charge before the enquiry officer and accordingly the petitioner was found guilty to the charges. After considering the entire service record of the petitioner it was resolved that the decision taken by the Board on 19th July, 2013 regarding dismissal of the petitioner is completely in accordance with law and the appeal was dismissed.
12. The petitioner has failed to show that there was specific provision of giving an opportunity of hearing at the time of dismissal of such appeal in the General Body Meeting.
13. At the time of hearing learned Advocate for the petitioner contended that petition has reached the age of superannuation in the meantime. Therefore, it would be a futile exercise if any direction be given to the General Body of the bank to rehear the appeal filed by the petitioner. The petitioner could not specifically show before the Court in respect of specific violation of any rules and procedures in the disposal of the appeal filed by the petitioner and in view of the decision Bhabani Adhikari v. West Bengal State Co-operative Bank Limited & Ors. (Supra) of our High Court the writ application becomes not maintainable in law.
14. In the premises set forth above the writ application is dismissed.
15. No order as to costs.
16. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
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