Satyanarayan Panda vs Orissa State Co-operate Bank Ltd.

B.K. Nayak, J.—In this Writ Petition the Petitioner challenges the initiation of the disciplinary proceeding against him & prays for quashing the charges framed against him as per Annexure-6 on the ground that the proceeding initiated by the Managing Director of the Orissa State Co-operative Bank Ltd. is without jurisdiction inasmuch as the/Managing Director has no authority under law to initiate such proceeding. The Petitioner is an employee of Orissa State Co-operative Bank Ltd. (in short ''OSCB'') in the rank of Deputy General Manager. During April, 1999, he was posted as Secretary of Banki Central Co-operative Bank Ltd. on deputation. Thereafter he was transferred to District Central Co-operative Banks at Balasore, Sambalpur & Cuttack. From the NABARD Inspection Report of Cuttack Central Co-operative Bank Ltd. with reference to the financial position as on 31.03.2013 & Special Audit Report of the Cuttack Central Cooperative Bank Ltd. for the same period during which the Petitioner was working as Chief Executive of the Cuttack Central Co-operative Bank Ltd., it came to light that the Petitioner had committed gross irregularities in violation of the Rules, Procedures & directives issued by the Reserve Bank of India/NABARD/OSCB from time to time thereby putting the Bank to huge loss & exposing the organization into severe Operational Risk. Therefore, a proceeding was initiated against him & charge-sheet dated 30.01.2014 as at Annexure-6 was framed & served upon him for major misconduct under Rule 33(a)(i), (ii), (vii), (xvi) & (xix) of the OSCB & was directed to submit his explanation.

It is submitted at the bar that without submitting his show cause/explanation to the charges framed against him, the Petitioner filed a representation questioning the authority & jurisdiction of the Managing Director of the OSCB & did not participate in the proceeding. Understandably, after completion of enquiry in the proceeding the matter is now pending at the stage of second show cause notice. At this stage, the present Writ Petition has been filed challenging the very initiation of the proceeding on the ground that the Managing Director has no authority & jurisdiction to initiate the proceeding & issue charge-sheet.

The OSCB-Opp. Party No. 1 as well as the Cuttack Central Co-operative Bank Ltd.-Opp. Party No. 4 have filed separate counter; affidavits stating inter alia that the Managing Director of the OSCB under law has the jurisdiction & authority to initiate the proceeding against the Petitioner. Preliminary objection has also been raised by the Opp. Parties for entertaining the writ application while the disciplinary proceeding is still pending against the Petitioner, on the ground that the Petitioner has statutory remedy of approaching the Co-operative Tribunal u/s 67B of the Orissa Cooperative Societies Act, 1962. It is submitted that since a statutory Tribunal has been created, which is manned by an Officer of the Orissa Superior Judicial Service (District Judge Rank), who is competent to decide not only the merits of a disciplinary action, but also all questions including the question of jurisdiction or competency of the authority initiating the disciplinary proceeding & issuing charge-sheet, this Court should not entertain the Writ Petition.

In reply to the preliminary objection, the Learned Senior Counsel appearing for the Petitioner submits that even where alterative remedy is available, the High Court is competent to entertain the Writ Petition if the action or file order impugned is beyond the jurisdiction & competence of the authority concerned. In support of their respective contentions both sides have, apart from referring to various provisions of the Orissa Co-operative Societies Act, the OSCB Staff Service Rules, 1980 & the Bye-Laws of OSCB, relied upon some decisions of the Hon''ble Apex Court as well as of this Court.

In the decision reported in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, , where notice was issued by the Registrar of the Trade Marks u/s 56(4) of the Trade & Merchandise Marks Act, 1958 for proposed cancellation of renewal of the Trade Mark Certificate, & a Writ Petition was directly filed before the High Court challenging such notice, the Hon''ble Apex Court held as follows:

"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective & efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been field for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

For holding as above, the Apex Court referred to the decision in the case of K.S. Rashid and Son Vs. The Income Tax Investigation Commission etc., where it was held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226 unless there are good grounds therefor. The Apex Court also relied upon the previous Constitutional Bench decision in the case of A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, wherein it was observed as follows:

"The passages in the Judgments of this Court we have extracted would indicate (1) that the two exceptions which the Learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive & (2) that even beyond them a discretion vested in the High Court to have entertained the petition & granted the Petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, & that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."

Reliance has been placed on behalf of the Opp. Parties in the decision reported in T.K. Rangarajan Vs. Government of Tamil Nadu and Others, ., wherein it has been observed as follows:

"5. At the outset, it is to be reiterated that under Article 226 of the Constitution, the High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situation having no parallel. It is equally true that extraordinary powers are, required to be sparingly used. The facts of the present case reveal that this was most extraordinary case, which called for interference by the High Court, as the State Government had dismissed about two lacs employees for going on strike.

It is also established principle that where there is an alterative, effective, efficacious remedy available under the law, the High Court would not exercise its extraordinary jurisdiction under Article 226 & that has been reiterated by holding that the litigants must first approach the Tribunals which act like Courts of first instance in respect of the areas of law for which they have been constituted & therefore, it would not be open to the litigants to directly approach the High Court even where the question of vires of the statutory legislation is challenged.

There cannot be any doubt that the aforesaid Judgment of larger Bench is binding on this Court & we respectfully agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier because of very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute."

In the aforesaid case alternative remedy was held not to be a bar for entertaining a Writ Petition by the High Court, as it was a matter of unprecedental & extraordinary situation where for resorting to strike two lakhs government employees were dismissed by the Government of Tamil Nadu by one stroke of pen.

Reliance has also been placed in the decision reported in The Secretary, Min. of Defence and Others Vs. Prabhash Chandra Mirdha, wherein it has been held that the removal & dismissal of a delinquent on misconduct must be by the authority not below the appointing authority. However, it does not mean that disciplinary proceedings may not be initiated against the delinquent by the authority lower than the appointing authority. It is also permissible for an authority, higher than the appointing authority to initiate the proceedings & impose punishment in case he is not the Appellate authority so that the delinquent may not lose the right of appeal. In other case, the delinquent has to prove as to what prejudice has been caused to him.

Similar view has also been expressed by the Hon''ble Apex Court in the decision reported in Inspector General of Police and another Vs. Thavasiappan,

The Learned Senior Counsel appearing for Opp. Party No. 4 has relied upon a decision rendered by a Division Bench of this Court reported in Pravas Chandra Das Vs. The Urban Cooperative Bank Ltd., wherein the Division Bench refused to interfere with the order of suspension & initiation of a disciplinary proceeding in view of availability of the alterative remedy u/s 67B of the Orissa Co-operative Societies Act, 1962.

The principle that can be deduced from the aforesaid decisions is that normally the High Court would not interfere with the charge-sheet of with the disciplinary action if there is an alternative efficacious remedy, unless there is a complete lack of jurisdiction on the part of the authority issuing the charge-sheet & the case involves unprecedented, extraordinary & very exceptional circumstance. In considering the question of interference the High Court has to exercise the discretion keeping in view the facts & circumstances of each individual case. In the instant case, as has been submitted at the bar, the disciplinary proceeding against the Petitioner is said to have already reached the stage of second show cause notice, which otherwise means that only final order remains to be passed by the competent authority on receipt of the second show cause notice of the Petitioner. Therefore, this Court is not inclined to examine piecemeal the question of jurisdiction of the Managing Director of OSCB to initiate proceeding & issue charge-sheet in view of the availability of the statutory remedy to the Petitioner u/s 67B of the Orissa Co-operative Societies Act, 1962.

The Writ Petition is, therefore, dismissed. No costs.