ASIM KUMAR HAJRAH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this writ petition, Asim Kumar Hajrah, the petitioner, has challenged the order, dated 29th January, 2009, issued by the Managing Director, West Bengal State Co-operative Bank Limited, (for short the 'said bank') the respondent No. 5, being annexure P8 to the writ petition, dismissing him from service with immediate effect and directing that the subsistence allowance paid to him during his period of suspension shall be treated as the full and final payment made to him and also holding that all dues outstanding against him should be realised by way of adjustment from his accounts standing in his credit, if any, in the bank on exercise of the banker's lien thereon. The facts in brief, which are relevant for adjudication, are that on 26th February, 2007, while being posted as the Branch Manager, Poura Bhavan Branch of the said Bank, the petitioner suffered a severe cerebral attack and was admitted in a hospital at Kolkata with loss of consciousness. Since then he has undergone treatment in different hospitals. At present the petitioner is unable to communicate verbally or non-verbally and is fed artificially. Because of such mental infirmity, as he is not in a position either to put his signature or to convey instruction to his advocate he had filed this writ petition with the help of his wife Anjali Hajrah, the next friend, who is major, of sound mind and her interests are not adverse to that of the writ petitioner. It has been stated that while he was critically ill and was on leave for medical treatment, the Managing Director of the said bank, inspite of knowing fully well about his physical condition, by an order dated 17th July, 2007 made over to his daughter, had placed him under suspension whereby he was directed not to attend office unless he was asked by the Managing Director in writing and not to leave the headquarters without the prior permission in writing. Subsequently, the petitioner was called upon by a show cause notice dated 19th September, 2008 as to why departmental proceeding should not be initiated against him for negligence in discharge of duties, indifference towards the interest of the bank and insubordination. In answer, by an advocate's letter dated 4th October, 2008, it was brought to the notice of the respondent No. 5 that the petitioner had undergone medical treatment and was not in a position to give reply effectively to the notice to show cause and request was made not to proceed with the said notice till he regained his memory. Thereafter, by an order dated 9th January, 2009, issued by the respondent No. 5, served on his wife, it was intimated that the bank had decided to initiate departmental proceedings. The said order contained a list of Article of Charges, imputations, list of documents and list of witnesses to be relied on to prove the charges. The Article of charges levelled against the petitioner pertained to alleged irregularities in sanction and/or payment and disbursement of loan or issuance of bank guarantee by the petitioner as Branch Manager of the said Branch to different customers. By an advocate's letter issued on "behalf of the petitioner, delivered on 16th January, 2009, the authorities were requested not to proceed with the disciplinary proceedings in view of the physical condition of the petitioner of which the respondents were aware. Request was also made to release the six term-deposits of the petitioner which had matured. Thereafter, the respondent No. 5 issued the order of dismissal which, as noted, is under challenge.

(2.) The writ petition was moved on 30th June, 2009 when, by an order, directions were issued to file affidavits. It was recorded in the order that all questions including the point of maintainability of the writ petition would be considered at the time of hearing and the Regional Provident Fund Commissioner, Employees' Provident Funds Organization, Kolkata, the respondent No. 7, was directed to consider the release of the employees provident fund in accordance with law. Pursuant to the directions affidavits have been filed and are on record.

(3.) At the very outset Mr. Tarun Kumar Roy, learned senior Advocate appearing for the Bank and its Managing Director submitted as the State has no deep and pervasive financial and administrative control over the bank, it is not a State under Article 12 of the Constitution of India. Moreover, as by West Bengal Cooperative Societies Act, 2006 (for short '2006 Act'), the West Bengal Cooperative Societies Act, 1983 (hereinafter referred to as the '1983 Act') stood repealed and in view of the provisions contained in the 2006 Act, particularly sections 6, 134A, 134(2) and 157 thereof and the West Bengal Co-operative Societies Rules, 2011('2011 Rules' for short), both of which simultaneously came into effect from 18th January, 2011, the writ petition is not maintainable. Submission was as the writ petition was filed in 2009 challenging the order passed in alleged violation of Rule 48(f) under the West Bengal Cooperative Societies Rules, 1987 ('1987 Rules' for short), which stood repealed by the 2011 Rules and as the litigations filed under the 1983 Act are not saved under the 2006 Act, the writ petition cannot be maintained. Moreover, as the said Bank under the 2006 Act has been granted autonomy in all financial and administrative matters and as taking disciplinary action against an employee for maintaining banking discipline is an administrative matter of a banking cooperative society, the writ petition is not maintainable. Submission was as the Constitution (Ninety-seventh Amendment) Act, 2011, which came into effect from 15th February, 2012, amending Article 19(1)(c) and inserting Articles 43B and 243ZI, has given a citizen the right to form Co-operative society and grants complete functional autonomy to such society and as adherence to the principles of natural justice is no longer a statutory requirement, a writ petition does not lie against a co-operative society. However, it was submitted that the bank has no bias against the petitioner which is evident as it had extended financial help during his illness. Submission was in the event the petitioner, through his wife, makes a written appeal before the Board of Directors of the Bank challenging the impugned order, it shall be considered sympathetically.