DEBRAJ HALDAR Vs. ASSISTANT REGISTRAR CO OP SOC

JUDGEMENT

(1.) The Memo dated 31st January, 1979 issued by the Secretary, Diamond Harbour Thana Large Sized Co-operative Marketing Society Limited terminating the service of the writ petitioner is under challenge in this Rule. The petitioner was appointed as a temporary Manager of the Society on 1st July, 1976 and by Memo dated 12th January, 1977 he was made a permanent staff of the said Society. On 25th August, 1978, the petitioner sold controlled clothes to four purchasers and charged excess price of Re. 1/- each by Cash Memo Nos. 1493, 1497, 1498 and 1503. On the same date he detected his mistake and immediately wrote letters to each of the purchasers to take back the excess payment of Re. 1/-each. Again on 30th August, 1978 another mistake crept in when he sold a Janata Saree to one Smt. Paru1 Ba1a Das and charged excess price of 60 paise by Cash Memo No. 1545. Again the mistake was detected by the writ petitioner on the very game date and the money was returned back by Receipt No. 1563. On 4th September, 1978, the Executive Officer of the said Society, the respondent No. 6, directed the petitioner to explain why he received a sum of 8s. 12.50 for a Janata Saree in place of Rs. 11.90 from a customer on 30th August, 1978. The petitioner explained his conduct by a letter dated 6th September, 1978 and admitted his error and also submitted that the excess amount has already been refunded on the very same date to the customer. He further submitted that it was a sheer mistake on his part and there was no wilful or deliberate act of misconduct. The Managing Committee at its meeting held on 4th October, 1978 discussed the matter and condoned the error committed by the petitioner but cautioned him for the future. The new Managing Committee of the said Society took over on 14th December, 1978. The Co-operative Development Officer, South 24 Parganas, the Respondent No. 7, at the instance of the respondents conducted an ex parte enquiry behind the back of the petitioner into the allegations made by Smt. Parul Bala Das and the Assistant Registrar of Co-operative Societies, the Respondent No. 1, by bis Memo dated 29 th January, 1979, magnified the seriousness of the laches on the part of the petitioner by hyperbolic sentences and brought into it previous conduct of tie petitioner when he was an employee of the Central Co operative Bank as Manager and was discharged by that Bank on the charge of defalcation. The Assistant Registiar emphasised upon the said Society to take up the matter seriously so that appropriate action be taken against the anti-Society activity of the Manager. Two days thereafter the Secretary by a letter dated 31st January, 1979 informed the pstitioner that his service is not required on and from the afternoon of 31 st January, 1979 by describing him as a temporary Manager though he was made permanent member of the staff on 12th January, 1977.

(2.) It appears from the order sheet that this Rule was discharged on 20th July, 1979 by A. K. Mookherjee, J. on the ground that no writ lies against any Co-operative Society. The petitioner preferred an appeal being FMA No. 537 of 1980 against the said order and the Appeal Court consisting of M. N. Roy and A. C. Sengupta. JJ observed that since the Rule in question was discharged only on the limited point that the writ did not lie against any Co-operative Society, without going into the merits of the respective contentions, the matter be thrashed out before the appropriate Bench on merits and full particulars and directions were also made to file affidavits.

(3.) Mr. Mukherjee, the learned Counsel appearing for the petitioner, submitted that the outgoing Managing Committee at its meeting held on 4th October, 1978, discussed the matter and condoned the error committed by the petitioner as Manager and the matter was closed once for all. But the new Managing Committee instigated the State-Respondents to conduct an ex pane enquiry against the petitioner without giving him any notice and on the basis of an ex parte enquiry without any shew cause notice and without any opportunity of being lieard the service of the petitioner was done with by the Secretary of the said Socisty, The Bye laws of the Society particularly Rules 38(7) and 38 (18) were given a go-bye and the principle of natural justice was totally denied to the petitioner. So far the question whether the writ lies against the Co-operative Society, Mr. Mukherjee cites a decision reported in Nayagarh Co-operative Central Bank Limited & Ors. v. Narayan Rath & Ors., [AIR 1977 SO 112] in support of his contention and submitted that the question should be dealt with on the background of facts and circumstances of the case. He farther submitted that in this particular decision though the order under challenge was that of the Secretary but in fact the alleged action was taken on the basis of the Memo of the Assistant Registrar of Co-operative Societies and, as such, the Writ Court has jurisdiction to entertain the application.