Decided on July 10,2003

Ashok Kumar Kharbanda Appellant

Referred Judgements :-



Amitava Lala, J. - (1.)The petitioner has challenged herein the order of removal of service of the petitioner without any disciplinary proceeding or without giving any opportunity of hearing. It appears from the annexures that the petitioner was initially appointed on probation but subsequently he became permanent in the post of 'Dairy Manager' of a Co-operative Milk Producers, named as "The Himalayan Co-operative Milk Producers' Union Limited." By filing the writ petition, the petitioner wanted to establish his case upon ascertaining the position as to whether the writ lies as against the Co-operative Societies or not. In paragraph 20 of the writ petition, it has been explained that the Co-operative Society is instrumentality of the Government and entirely financed and controlled by the State. The Executive Officer of the Co-operative Society is an I.A.S. Officer who was appointed by the State Government. Therefore, the whole purpose of making such averment is to satisfy the court that the state has deep and pervarsive control over and in respect of the Co-operative Society and the same can be called as instrumental of the State.
(2.)However, lot of controversy arose before this court in numerous matters as to whether writ lies against a Co-operative Society or not. Ipso facto it cannot be answered without justifying the cause. Assuming for the moment that if there is a dispute which is to be adjudicated by the Registrar under Sec. 95 of the Co-operative Societies Act, the same cannot be adjudicated by the writ court under normal circumstances but here the dispute is in respect of condition of service. In a Co- operative Society, there are two processes of service. One is contractual service and another is service having statutory flavour. The services which have statutory flavour are to be governed by the Appendix to Chapter-VI of Rule 108 of the West Bengal Co-operative Societies Rulers, 1987. In such case, the writ court can be entertained as it has been ascertained by the court in the earlier occasion by a Division Bench Judgment reported in 1991(1) Cal. Law Times (H.C.) 211: [1991(1) SLR 681 (Cal.)] (Arjed Ali Gazi Vs. State of West Bengal & Ors. ). Therefore, I do not think that there can be any embargo for the writ court to go into the merit of the case. So far as the question of merit is concerned, since no affidavit has been filed and since no one appeared on behalf of the respondents, it can be presumed that whatever statement as made in the writ petition as against the removal of the service without any opportunity of hearing or without proceeding with the disciplinary action, is established.
(3.)Therefore, in disposing of the writ petition I am of the view that such order of removal cannot be given effect until and unless an appropriate procedure for removal is being followed by the authority concerned. Therefore, the order of removal is absolutely unjustified. Accordingly, such notice of removal stands quashed. As a result whereof, the Co-operative Society, if so required, can proceed with the matter by way of disciplinary proceeding in accordance with law. Since the court is not aware whether the petitioner was gainfully employed or not, at present no relief is granted in respect of any monetory benefit. However, he is entitled to raise the issue, if law permits, before the authority concerned. If the amount of Rs. 2,025.00 p being the cheque amount is given to the petitioner and the same is received in cash, the same will be adjusted subject to the result of the disciplinary proceeding.

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