ARJED ALI GAZI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This writ petition is directed against an order of the Secretary, Dakshin Barasat Service Co-operative Society (hereinafter referred to as the Society) dismissing the service of the writ petitioner, Sri Arjed Ali Gazi, who was an employee of the Society. Mr. Justice Monoranjan Mallick has noted that there are convicting decisions of Single Bench of ibis Court on the question of maintainability of a writ petition against a Cooperative Society. As the said question is important and is often involved in other writ petitions, the learned Judge felt that the matter should be considered by a Division Bench. In view of such observation by the Single Bench, this matter has been assigned to this Division Bench by the Hon'ble the Chief Justice. The short facts relating to the order of dismissal may be stated hereunder. Sri Arjed Ali Gazi was an employee of the Society, which is a primary Co-operative Society governed by the West Bengal Co-operative Societies Act. It was alleged against Sri Gazi that he had not accounted for six bags of cement which were sold by him on behalf of the Society. On an enquiry made, it was revealed that there was shortage of fifty bags of cement. It was tentatively proposed to dismiss him from service. Sri Gazi made a representation in writing to the Governing Body of the Society not to impose the extreme penalty of dismissal from service so that he would not starve with the members of his family in those hard days. He had admitted that out of want, he had misappropriated the sale proceeds of six bags of cement. Although different persons had dealt with cement from time to time and he was not accountable for the total loss of 5D bags of cement, he had agreed to deposit the price of 50 bags of cement with the Society by installments. It is an admitted position that the Governing Body had considered the said representation and had adopted a resolution on 17.4.19'88 that extreme penalty of dismissal from service should not be passed for lapses for the first time. He was directed to deposit the price of the said fifty bags of cement and was demoted as a Sub-staff from the clerical post. According to Sri Gazi, such decision was implemented and he had to accept the position of a Sub-staff of the Society. Inspite of the said resolution of the Governing Body, a fresh enquiry was made by the Society and the enquiry committee consisted of three members of the Society which held that charge of misappropriation of six bags of cement was established and the Secretary passed the impugned order of dismissal from service on the basis of such ex parte enquiry without giving Sri Gazi any hearing. Against such order of dismissal from service, the writ petition has been moved by Sri Gazi challenging the legality and validity of the order of dismissal. It has been contended, inter alia, that the Governing Body of the Society had already resolved that for the loss of cement, no order of dismissal should be passed against Sri Gazi but he would compensate the loss and suffer the said punishment of demotion and such decision of the Governing Body having been implemented, there was no further scope to cause any enquiry about his complicity in the matter of dealing with cement and/or take any action pursuant to such ex parte enquiry. It has been alleged, inter alia, that under clause 15 of Rule 108 of the West Bengal Co-operative Societies Rules, 1987, the Governing Body of the Society was the appropriate punishing authority and the General Body of the Society was the appellate authority. The appropriate punishing authority having imposed the said penalty of reversion and fine and no appeal having been preferred against such penalty before the Governing Body, the said penalty had become final and any further enquiry and consequential penalty as purported to have been passed against Sri Gazi were wholly illegal and without jurisdiction. In any event, the said enquiry having been held ex parte behind the back of Sri Gazi and the impugned order having been passed without giving any opportunity of being heard to Sri Gazi, such enquiry and the impungned order of dismissal were illegal and invalid. The facts as alleged by Sri Gazi that for the loss of said cement, the Governing Body had resolved for punishment of reversion and fine Wd such penalty had been implemented and thereafter an ex parte enquiry was made by a committee and on the recommendation of the committee holding him guilty for misappropriation of six bags of cement, an ex parte order of dismissal was passed by the Secretary of the Society appear to be correct. In the aforesaid facts and circumstances of the case, the impugned order of dismissal cannot be sustained. But a preliminary objection has been raised by the Respondents that no writ lies against the Co-operative Society in the matter of the impugned order of dismissal of an employee of the Society and as such, the Writ Court cannot look into the merits of the case and/or to pass any order on the writ petition.

(2.) Mr. Milan Bhattacharya, appearing for the State of West Bengal and the Registrar of Co-operative Societies, West Bengal has contended that the Co-operative Society is formed by the initiation of the members of the Society. For such formation, no aid of a statute is necessary. The State Legislature in its anxiety to ensure that Co-operative Societies formed by private individuals function in a desired manner has enacted the West Bengal Cooperative Societies Act. By such Act, Registrar of Co-operative Societies, West Bengal and its officers have been empowered to oversee the activities of the Co-operative Societies and to entertain certain types of complaints about the irregular functioning of the Co-operative Societies and to take appropriate remedial measures prescribed in the said Act. He has submitted that the Registrar and other Sub-ordinate officers under him have been vested with statutory rights and duties in the matter of exercise of supervision of the affairs of the Co-operative Societies and for inaction or improper or illegal action of the Registrar and other Government officials, a prayer for appropriate writ and/or direction against the Registrar or other Government officials entrusted with statutory duties and responsibilities, may be made and the Courts have entertained such writ petitions for issuing writs or orders on such statutory authority. But the Society is not a statutory body nor an instrumentality of the Government and as such, 'State' within the meaning of Article 12 of the Constitution. It is a private body and its dealing with its employees cannot be the subject matter for action in the constitutional writ jurisdiction under Article 226 of the Constitution.

(3.) Mr. Bhattacharya has contended that subject to the provisions of the Co-operative Societies Act, a Co-operative Society is governed by the Bye-laws framed by the Society. The terms and conditions of the service of an employee of the Co-operative Society emanate from the service contract between the employee and the Society and bye-laws, if any, framed by the Society in that regard. Such private contract and bye-laws have no statutory force and for breach of such terms of contract or bye-laws, the writ jurisdiction of High Court cannot be availed. Mr. Bhattacharya has submitted that this Court and other High Courts and also the Supreme Court have held that a Co-operative Society is not a statutory body and a State within the meaning of Article 12. He has submitted that law is well settled that for enforcement of a private right against a private body, no writ is maintainable. Mr. Bhattacharya has referred to the decision of a Single Bench of this Court made on 22.6.1989 m C.O. 13015(W) of 198Z (Asis Kumar Sen vs. State of West Bengal & Ors.). In the said case, an alleged arbitrary and/or improper selection of a person in preference to the writ petitioner by a Cooperative Society was sought to be challenged. It has been held that no writ lies against the Co-operative Society.