Nayan Sarkar vs The State Of West Bengal & Ors
2021 Latest Caselaw 1556 Cal

25.02.2021.
Item no. 136.
Court No.13
   sp
                             W.P.A. No. 3243 of 2021
                           (Through Video Conference)

                                  Nayan Sarkar
                                      Versus
                         The State of West Bengal & Ors.


                   Mr. Avishek Prasad,
                   Ms. Ankita Dey.
                                                    ...For the petitioner.
                   Mr. Srijan Nayak,
                   Mr. Biplob Das.
                                                         ..For the State.

                   Mr. Sarajit Sen.
                                       ...For the respondent nos. 3 & 6.

Affidavit of service filed by the petitioner in Court

today is taken on record.

The writ petitioner is admittedly a Group-C

employee of the Malda Co-operative Urban Bank Limited

within the meaning of the West Bengal Co-operative

Society Act, 2006. The writ petitioner was suspended

from service on 03.12.2018 pending regular

departmental enquiry. Being dissatisfied with the cause

shown by the petitioner, the Bank issued a charge sheet

under the signature of the Chairman and Disciplinary

Authority.

The petitioner replied to the charge sheet with a

reservation. He submitted that the charges are vague

and that he requires a number of documents to defend

him. The Bank did not supply any further documents

than those already supplied along with the charge sheet.

The proceedings are assailed as a whole by the

petitioner on three grounds, which are as follows;

1. The Chairman of the Bank is not the petitioner's

appointing authority and therefore could not issue the

charge sheet.

2. Even the additional charge sheet dated

November 4, 2020 issued to the petitioner was without

the authority since it has been issued by the Vice-

Chairman of the Bank.

3. The documents necessary for the petitioner's

defence have been denied to him. There is violation of

principle of natural justice.

In support of first argument, learned counsel for

the petitioner relies upon the provisions of Section 20 of

the WBCS Act of 2006 to argue that the alleged Rules

relied upon by the Bank not having been registered in

terms of the Section 20 and hence are not valid and

proceedings, if any, against the petitioner can only be

instituted in terms of the Act of 2006.

Counsel for the Bank submits that sometime in

the year 2013, the Bank had forwarded to the ARCS

concerned, the Rules in question for approval and the

same had subsequently been approved. However,

counsel for the petitioner refers to Section 20 read with

Section 60 of the Act of 2006 to submit that the

procedure adopted by the Bank is not sufficient to treat

its Rules as registered within the meaning of Section 20

of the 2006 Act.

The Bank's Rules registered or otherwise appear to

have been in furtherance of said Rules 15(1) and (2) of

the West Bengal Co-operative Rules of 2011. Even

assuming for the sake of argument that the Rules of the

Bank have not been registered, the Bank is entitled to

rely upon Rule 106 Sub-Rule 15 to proceed against its

employee.

There appears to be a slight discrepancy between

the Sub-Rule 1 and Sub-Rule 2 of Rule 15 of the

aforesaid 2011 Rules. While Sub-Rule 1 prescribes that

the Board of Directors of a Society are the Appointing

Authority and consequently the Disciplinary Authority

for all employees of a society. Sub-Rule 2 prescribes that

an appeal would lie against an order passed by the Chief

Executive Officer to the Chairman of the Board. An

appeal against an order passed by the Chairman or Vice-

Chairman of the Board is stated to lie to the Board. An

appeal from the Board's order is stated to lie to the

General Body of Members.

While it is true that in most societies in the State,

the Board of Directors is normally the Appointing

Authority upto Group-C posts. It is only in the case of

Group-D posts that the authorities below the Board

become Appointing Authority. Therefore, one could come

to the conclusion that most of the provisions of Sub-Rule

2 would be applicable to Group-D employee and in

respect of all employees Group-C and above.

In the instant case, the petitioner is admittedly a

Group-C employee. The Disciplinary Authority for the

petitioner ought to have been the Board of Directors

itself. The appellate authority is the General Body of

Members.

The Board of Directors of the respondent Bank, by

resolution, is stated to have taken the decision to

institute the departmental enquiry against the petitioner.

Hence, the Chairman of the Bank by issuing the charge

sheet ought to have stated that the same is issued at the

instance of the Board of Directors and he is merely

communicating a decision of the Board to the petitioner.

Suitable corrections shall be made by the Bank to the

charge sheet and the additional charge sheet in this

regard and a fresh composite charge sheet shall be

issued by the Bank forthwith. The Bank shall also

communicate to the petitioner a fresh list of witnesses in

support of the enquiry.

The petitioner shall be entitled to submit a fresh

reply to the charge sheet. In so far as the documents

sought by the petitioner outside those already supplied

to him, the Disciplinary Authority shall, through the

Chairman, communicate the petitioner as to why

documents sought cannot be supplied to him and if the

documents can be supplied, the same should be supplied

to him immediately.

Counsel for the Bank in this regard submits that

some documents sought by the petitioner are

voluminous in nature. The Bank shall, therefore, allow

the petitioner due inspection of the same and relevant

extracts copies of the documents shall be permitted to

the petitioner.

The Disciplinary Authority shall be entitled to

appoint an Enquiry Officer. The Bank shall appoint an

Enquiry Officer and a Presenting Officer. The petitioner

may chose any employee of the Bank to assist him as a

defence assistant or to represent him in the enquiry. The

enquiry shall be proceeded with and completed

mandatorily and positively within a period of 4 months

from date.

The Enquiry Officer shall submit a report to the

Disciplinary Authority upon completion of the witness

action along with his comments as regards the findings.

A copy of such enquiry report shall be furnished to the

petitioner simultaneously upon being submitted to the

Disciplinary Authority. The petitioner shall be entitled to

represent against the enquiry report before the

Disciplinary Authority. If the Disciplinary Authority and

the Enquiry Officer have found the petitioner guilty of

charges and if the Disciplinary Authority chooses to

impose any punishment, a second show cause notice

shall be issued to the petitioner.

The final order of the Disciplinary Authority shall

be appealable to the General Body of Members.

The Chairman of the Board of Directors shall

communicate all decisions of the Board of Directors/

Disciplinary Authority at every stage to the petitioner.

The petitioner shall remain in suspension for a period of

4 months from date.

With the aforesaid observations, the writ petition is

disposed of.

There shall be no order as to costs.

Urgent photostat certified copy of this judgment, if

applied for, be given to the parties upon compliance of all

formalities.

(Rajasekhar Mantha, J.)