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Dipak Chatterjee v. State of West Bengal and Ors. - (High Court of Calcutta) (16 Jun 2017)

An order of dismissal of writ petition on merits would ensue, if no case of breach of a statutory provision is made out

MANU/WB/0420/2017

Service

In facts of present case, Petitioner has been working as Assistant Accountant of Suri Friend's Union Co-operative Bank Limited, a registered cooperative society and his service has been terminated by Resolution No. 19 passed by General meeting. Petitioner has filed present writ application with specific prayer that, Resolution No. 19 passed in 63rd Annual General meeting held on 21st February, 2016 be set aside and bank only be directed to re-hear appeal preferred by Petitioner against decision of Board of Directors. Question raised in present matter is whether appeal preferred by Petitioner has been disposed of in accordance with law in General Body Meeting in 63rd Annual General meeting of Bank.

High Court in Bhabani Adhikari v. West Bengal State Co-operative Bank Limited and Ors., observed that, if there is a breach of a statutory duty which is made foundation of a writ petition against an employer which is not otherwise amenable to writ jurisdiction, then 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 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 first case, Court cannot assume jurisdiction; in second Court has to adjudicate on merit, whatever may be the degree, to arrive at a conclusion.

Petitioner has simply stated that, order of dismissal is contrary to Clause VI of Appendix 2 Chapter 5 of West Bengal Co-operatives Rule, 2011. Some violation of Co-operative Societies Rules has been pleaded in writ application. Therefore, in view of decision referred above, it cannot be said that, instant writ application is not maintainable. It is necessary to decide writ application on merit in order to ascertain, if Petitioner has been able to show any violation of West Bengal Co-operatives Societies Act and Rules framed thereunder.

It appears from order dated 1st August, 2013 passed in WP 18343(W) of 2013 that, Petitioner did not press entire writ application in respect of defects in charge sheet, report of enquiry officer, alleged arbitrariness on part of co-operative bank but has simply prayed for leave of Court to file an appeal before General Body Meeting of such bank. This Court has duly disposed of such writ application in terms of such prayer of Petitioner. Petitioner has again raised such matters with respect to defect in enquiry report, charge sheet and arbitrariness on part of administrative authority of the bank. In view of settled principle of "res-judicata", Petitioner will not be permitted to raise such points once again in a subsequent writ, when Petitioner has already discarded such reliefs in earlier writ applications.

From documents annexed with writ application and Resolution No. 19 of 63rd Annual General Meeting of Bank, it appears that charges were framed against Petitioner in terms of Rule 106, Appendix 2 Chapter v Clause 13 and 14 of WBCS Rules 2011 and in tune with by-laws of bank. Petitioner did not challenge said rules. On contrary, Petitioner has pleaded guilty in respect of each and every charge before enquiry officer in black and white. Petitioner has also accepted his liabilities in respect of each and every charge before enquiry officer and accordingly, Petitioner was found guilty to charges. Petitioner has failed to show that, there was specific provision of giving an opportunity of hearing at time of dismissal of such appeal in General Body Meeting.

Petitioner could not specifically show before Court in respect of specific violation of any rules and procedures in disposal of appeal filed by Petitioner and in view of decision Bhabani Adhikari v. West Bengal State Co-operative Bank Limited & Ors. of High Court, writ application becomes not maintainable in law.

Relevant : Bhabani Adhikari vs. West Bengal State Co-operative Bank Limited & Ors. MANU/WB/0778/2008

Tags : RESOLUTION   TERMINATION   VALIDITY  

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