The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13454 of 2023 Sri Raghunath Sahoo …. Petitioner Mr. Digambara Mishra, Advocate -versus- Odisha State Cooperative Bank Limited, Bhubaneswar …. Opp. Parties Mr. K.P. Nanda, Advocate CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 12.03.2024 06. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr .D. Mishra, learned counsel appearing for the
Legal Reasoning
Petitioner as well as Mr. K.P. Nanda, learned counsel appearing for the Opposite Party-Bank. Perused the pleadings of the parties as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “Under the aforesaid facts and circumstances, it is, therefore, prayed that this Hon’ble Court may be graciously pleased to issue a ‘Rule-Nisi’ calling upon the Opposite Party; (i) hold and declare that the Disciplinary vide Proceeding No.OSCB/GAD/2632/2012-13 dated 28.07.2012 under Annexure-1 as illegal initiated // 2 // and quash the same; (ii) to to open the sealed cover (2014/2015) impart retrospective and direct promotion with effect from the date his juniors got promotion and direct the Opposite party-Bank to make fitment of the financial benefits; and service benefits and (iii) to quash 14.02.2023 the Order no.6600 dtd. (iv) direct the Opposite Party-Bank to grant service and the to all the consequential financial benefits, pension petitioner; and if the Opposite party-Bank fails to show cause or shows insufficient cause make the said rule absolute. AND Pass such other order/orders and/or writ/writs as this Hon’ble Court may deem fit and proper.” 4. The factual background leading to filing of the present writ petition is that on 28.07.2012, the impugned disciplinary proceeding was initiated against the present Petitioner. On 26.09.2012, the Managing Director, issued an order of appointment one Ajit Kumar Biswal, General Manager of the Opposite Party-Bank as Enquiry Officer. Thereafter, on 24.04.2013, another Enquiry Officer was appointed in place of the earlier Enquiry Officer. While the matter stood thus, the Petitioner retired form service on attaining the age of superannuation w.e.f. 30.06.2017. It also appears that earlier the Petitioner approached this Court by filing a writ petition bearing // 3 //
Decision
W.P.(C) No.10097 of 2022, which was disposed of by this Court vide order dated 17.05.2022 with a direction to Opposite Party No.2 to consider the representation of the Petitioner with a prayer to drop the proceeding. On 14.2.2023, a final order was passed by the Opposite Party thereby refusing to drop the proceeding which compelled the Petitioner to approach this Court by filing a contempt application bearing CONTC No.1865 of 2023. The impugned order, which according to the Petitioner, was antedated to overcome the difficulty arising out of contempt proceeding, was booked and posted at the post office and the same was received by the Petitioner only on 19.04.2023. Thereafter, the present writ petition has been filed with a prayer to quash the Disciplinary Proceeding initiated way back in 2012 when the Petitioner was in service on the ground that the continuance of such Disciplinary Proceeding is not permissible in view of the judgment of the Hon’ble Supreme Court in the matter of Dev Prakash Tewari vs. U.P. Cooperative Institutional Service Board, decided in Civil Appeal No.5848- 49 of 2014 and the judgment in the case of Bhagirathi Jena vs. Board of Directors, O.S.F.C. and Ors. (Civil Appeal No.2101/1999) by the Hon’ble Supreme Court of India. 5. Learned counsel for the Petitioner further contended that the gist of the aforesaid two judgments of the Hon’ble Supreme Court is that the absence of any specific provisions in the service rules, a disciplinary proceeding against the employee cannot be continued after his retirement from service. In such view of the matter, learned counsel for the Petitioner submitted that the // 4 // disciplinary proceeding which has been initiated against the Petitioner is liable to be quashed on such ground alone. 6. Mr. K.P. Nanda, learned counsel appearing for the Opposite Party referring to the counter affidavit raised a preliminary objection with regard to the maintainability of the present writ petition. In course of his argument, Mr. Nanda referred to the provision contained in Section 67-B of the Odisha Cooperative Societies Act, 1962. In the aforesaid context, he further contended that Section 67-B of the Odisha Cooperative Societies Act, 1962 provides that notwithstanding anything contained in any law for the time being in force, any dispute arising in connection with the election of any office-bearer of the Society, or the disciplinary action taken by a Society or its Committee against any paid servant of the Society who is not a workman shall be adjudicated by the Tribunal constituted under the aforesaid Act of the year 1962. In view of the aforesaid provision, the learned counsel appearing for the Opposite Party submitted that the Odisha Cooperative Tribunal being the alternative forum before which the present dispute can be adjudicated and the Tribunal is under the legal obligation to adjudicate the same. In such view of the matter, it was contended that since there is an alternative remedy available to the Petitioner, the present writ petition is not maintainable. 7. The adjudication of the present writ petition is thus confined to the issue with regard to the maintainability of the present writ petition. In support of his contention, Mr. Nanda, // 5 // learned counsel appearing for the Opposite Party referred to the judgment of this Court in Satyanarayan Panda v. Orissa State Co-operative Bank Ltd. & others (W.P.(C) No.2085 of 2014, decided vide judgment dated 25.07.2014. While referring to the aforesaid judgment, Mr. Nanda submitted that the Opposite Party in the aforesaid case is the very same bank, which is also the Opposite Party in the present writ petition. He further contended that learned coordinate Bench while interpreting the provisions contained in Section 67-B of the Odisha Cooperative Societies Act, 1962, in para-8 of the judgment has referred to the judgment of this Court by a Division Bench in the matter of Pravas Chandra Das v. The Urban Co-operative Bank Ltd., Cuttack, reported in 2004 (I) OLR 69, has observed that the Division Bench refused to interfere in the matter of suspension and initiation of disciplinary proceeding in view of the availability of alternative remedy under Section 67-B of the Odisha Cooperative Societies Act, 1962. Finally, while disposing of the said writ petition, the learned coordinate Bench held that since an alternative remedy is available to the Petitioner, the present writ petition at the instance of the Petitioner is not maintainable and the Petitioner should have exhausted the alternative remedy available by approaching the Odisha Cooperative Tribunal. 8. Having heard the learned counsels appearing for the respective parties and on a careful examination of the pleadings of the parties as well as the materials on record, this Court, at the outset, is of the view that in the present writ petition this Court is // 6 // required to adjudicate the issue of maintainability of the present writ petition. Consequently, in order to answer the issue of the maintainability of the present writ petition, this Court is required to look into the provisions contained in Section 67-B of the Odisha Cooperative Societies Act, 1962, which is quoted hereinabove. “67-B- (1)(i) Notwithstanding anything contained in any law for the time being in force, any dispute arising in connection with the election of any Office-bearer of a Society, or the disciplinary action taken by a Society or its Committee against any paid servant of the Society who is not a workman within the meaning of clause (s) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947), shall be referred to the Tribunal in the manner and within the period prescribed in that behalf. (ii) If any question arises as to whether a dispute referred to the Tribunal under clause (i) is a dispute within the meaning of that clause, the decision of the Tribunal thereon shall be final and shall not be called in question in any Court. (iii) All disputes arising in connection with the election of any Office-bearer of a Society or the disciplinary action taken by Society or its Committee against any paid servant of the Society, with whatever authority under this Act, Rules or any Regulations this Act framed under pending as on the date of commencement of the Orissa Co-operative Societies (Amendment) Act, 1991, shall stand transferred to the Tribunal which shall dispose of the same in accordance with law.] (2) The Tribunal may, pending the decision of the // 7 // dispute, make such interlocutory orders as it may deem necessary in the interest of justice. (3) The Tribunal may call for and examine records of proceeding in which appeal lies to it, but appeal has not been filed, for the purpose of satisfying itself as to the legality or propriety of any order passed or decision made therein and if in any such case it appears to the Tribunal that any order or decision should be revised, modified or annulled, it may make such order as it thinks fit, after affording to be affected adversely by such order, an opportunity of being heard. the person likely to (4) While deciding appeals, the Tribunal may exercise all the powers conferred upon the appellate Court by Order XLI of the First Schedule of the Code of Civil Procedure, 1908 (5 of 1908).” 9. On a careful analysis of the provisions of Section 67-B of the Odisha Cooperative Societies Act, 1962, it appears that under Chapter-VIII-A of the Odisha Cooperative Societies Act, 1962, under the heading Constitution and Powers of Tribunal, the Tribunal has been conferred with certain powers. Section 67- B specifically deals with powers of Tribunal. Section 67-B(1)(i) which was inserted by an amendment vide Orissa Act No.19 of 1983 dated 11.10.1983 starts with non obstante clause, i.e. notwithstanding anything contained in any law for the time being in force. Therefore, the provisions contained in Section 67-B stands independent of all of the facts governing the field. Further, the said provision confers powers of the Tribunal to adjudicate any dispute arising in connection with the election of any Office-bearer of a Society, or the disciplinary action taken by a Society or its Committee against any paid servant of the // 8 // Society, who is not a workman. A plain reading of Section-67-B of the Odisha Cooperative Societies Act, 1962 gives an impression that the Tribunal is an alternative forum under the Odisha Cooperative Societies Act, 1962, which has been conferred with the power to adjudicate dispute with regard to election of the Office-bearer or disciplinary action taken by the Society or its Committee against any of its employee. 10. While applying the aforesaid provisions to the facts of the present case, this Court observes that in the present case, there is no dispute that the Petitioner is an employee of the Opposite Party-Cooperative Bank. Further, while the Petitioner was working under the sole Opposite Party, a disciplinary proceeding was initiated against the Petitioner in the year 2012. Such proceeding continued till filing of the present writ petition. The present writ petition is filed for quashing the disciplinary proceeding on the ground that there is no provision in the Service Rules of the Bank of the year 1980 for further continuance of the proceeding against a paid employee of the Society after his retirement from service. According to the learned counsel for the Petitioner, the proceeding after retirement of the Petitioner is a non est in the eye of law as there is no such provision which empowers the Opposite Party-Bank to continue the proceeding even after retirement of the Petitioner from service w.e.f. 30.06.2017. In the aforesaid context, learned counsel for the Petitioner has also referred to the judgment of the Hon’ble Supreme Court in Dev Prakash Tewari’s case (supra) and others judgments as has been referred in the preceding // 9 // paragraph. 11. On a careful analysis of the factual background of the present case, it is very clear that the subject matter of the dispute in the present writ petition is the further continuance of the disciplinary proceeding against the Petitioner, who has retired from service in the meantime. Therefore, this Court has to examine as to whether the subject matter of the dispute falls within the scope of provisions of Section 67-B of the Odisha Cooperative Societies Act, 1962. 12. On a careful analysis of the provisions contained in Section 67-B of the Odisha Cooperative Societies Act, 1962, this Court observes that the disciplinary action taken by the Society falls within the scope and ambit of Section 67-B of the Odisha Cooperative Societies Act, 1962 thereby the Tribunal constituted under the Odisha Cooperative Societies Act, 1962 is empowered to adjudicate any dispute with regard to the disciplinary action taken by the Society. So far as the issue with regard to disciplinary action taken by the Society is concerned and as to whether the initiation of any proceeding and continuance thereof would fall within the ambit of Section 67-B of Odisha Cooperative Societies Act, 1962, the law is no more res integra as the same has been discussed in Satyanarayan Panda’s case (supra) and also in Pravas Chandra Das’s case (supra). In such view of the matter, this Court has no hesitation in coming to a conclusion that the dispute involved in the present writ petition falls squarely within the scope and ambit of Section 67-B of the // 10 // Odisha Cooperative Societies Act, 1962. Accordingly, the Tribunal, i.e. Odisha Cooperative Tribunal constituted under the Odisha Cooperative Societies Act, 1962 is empowered to adjudicate such a dispute. 13. In view of the aforesaid factual as well as legal analysis, this Court is of the considered view that the present writ petition is not maintainable. However, while disposing of the present writ petition, this Court grants liberty to the Petitioner to approach the Tribunal by filing an appropriate application within three weeks from today. In the event such application is filed before the Tribunal, the Tribunal shall do well to adjudicate the same as expeditiously as possible, preferably within a period of four months from the date of filing such application, keeping in view the fact that the Petitioner has retired from service since 2017 and the present writ petition was pending before this Court for months together. 14. With the aforesaid observations and directions, the writ petition stands disposed of. ( A.K. Mohapatra) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 17-Mar-2024 18:38:20