ANIMESH DUTTA GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) BY an order dated 28th February, 2011, an interim order was passed which was the subject-matter of appeal. At the hearing of the appeal the question of maintainability of the writ petition was raised. Therefore, the appeal Court set aside the order dated 28th February, 2011 and directed the issue of maintainability to be decided prior to consideration of the merits of the case.

(2.) COUNSEL for the respondent-bank submits that the writ petitioner was an employee of the bank who was suspended and a chargesheet issued. An Enquiry Officer was also appointed and Enquiry Report filed. Thereafter, the employee was dismissed from service. W.P. 16181 (w) of 2010 was filed wherein by order dated 23rd December, 2010 the order of dismissal was set aside for non-service of the Enquiry Report. By the said order the disciplinary proceeding was not stopped in any manner whatsoever. In compliance with the said order the copy of the report has been given to the petitioner and the disciplinary proceeding has been proceeded. The second proviso of Rule 108(16) of the 1987 Rules stipulates that the order of suspension will remain in force unless it is modified or revoked by the appropriate Court. There has been no statutory breach of the provisions of the 1983 Act, nor has the same been alleged in the writ petition. As the respondent-bank is not a State under Article 12 of the Constitution of India but is governed by its bye laws with no financial aid or control of the State, no writ will lie against it. The employees of the Society are controlled by contract.

(3.) OPPOSING the preliminary issue of maintainability Counsel for the writ petitioner submits that the order dated 23rd December, 2010 has allowed the disciplinary proceeding to continue. On the passing of the order of dismissal the order of suspension merged with such order and on the order of dismissal being set aside, the order of suspension has also been set aside as held in AIR 1955 SC 600. By this writ petition all that is sought is implementation of the order dated 23rd December, 2010 and it is an accepted proposition of law that a second writ petition is maintainable for implementation of the earlier order. For such proposition reliance is placed on 2003 (1) CHN 154; 2003 (4) CHN 148 and 2007 (1) SCC 457 and 465 para 23. The second proviso to Rule 108 (16) has no application as it applies to the pre-dismissal stage. Rule 108(16)(e) entitles the petitioner to payment of full allowance. There has been non-compliance with the order dated 23rd December, 2010 and the respondent-bank is entitled to place the writ petitioner under suspension once again as held in 1993 (4) SCC 727 and 757 para 31. Therefore, the writ petition is maintainable. In reply, Counsel for the respondent-bank submits that Rule 108(16) is not applicable to the facts of this case as there has been no breach. Any direction given will be to the Co-operative Bank.