Dismissed

Suresh Chandra Mohanty v. Registrar, Cooperative Societies and Ors.

Orissa HC5 Jul 2023WP(C)/7976/2017

Case brief

AI extract

What is this about?

Writ petition challenging dismissal from service via show-cause notice filed by an incompetent authority. Court denied leave to amend writ petition to assail subsequent dismissal order, holding that the proper alternative remedy lies before the Co-operative Tribunal under relevant statutory provisions.

What did the court decide?

Liberty granted to approach Co-operative Tribunal for redressal of grievances under Section 67-B of Orissa Co-operative Societies Act, 1962 with direction to condone delay.

Suresh Chandra Mohanty Vs Registrar… — Labour and Industrial Disputes | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA, CUTTACK

¶2

W.P.(C) No.7976 of 2017

¶3

Suresh Chandra Mohanty ....... Petitioner
-Versus-
Registrar, Cooperative
Societies, Odisha & Ors. ....... Opposite Parties
For Petitioner : Mr.J.K.Mohapatra
Advocate
For Opposite Party No.4 : Mr.K.P.Nanda,
Advocate
For Opposite Party No.5 : Mr.S. Das, Advocate
Advocate
...................
CORAM: JUSTICE SANJAY KUMAR MISHRA

Date of Hearing and Judgment: 05.07.2023

¶4

S.K. MISHRA,J.

¶5

1. The Petitioner, who was working as Branch Manager, Kodala Branch of the Opposite Party-Bank, has preferred the present Writ Petition challenging the notice dated 19.04.2017 issued by the Secretary, Aska Cooperative Central Bank Ltd., Aska (Ganjam), vide which he was asked to show cause as to why he shall not be dismissed from service. The said Show Cause Notice was issued solely on the basis of the

¶6

judgment dated 18.02.2017 passed by the Special Judge, Vigilance, Berhampur, vide which the Petitioner was found guilty of the offence under Section 13 (2) read with 13 (1)(d) of the 7 P.C. Act, 1988. The Petitioner has challenged the Show Cause Notice on the ground that the Secretary is incompetent to issue such a Show Cause Notice and only the Managing Committee is empowered under the Rules to issue the Show Cause Notice and take disciplinary action against the Petitioner. Further, the said notice has been challenged on the ground that no separate

¶7

disciplinary proceeding was initiated against the Petitioner before giving the Show Cause Notice proposing therein to dismiss him from service.

¶8

2. Though an application has been filed along with Writ Petition for interim protection with a prayer to direct the Opposite Parties not to take any coercive action against the Petitioner pursuant to impugned notice dated 19.04.2017, this Court simply issued notice to the Opposite Parties on 05.05.2017. No interim order has been passed restricting the employer

¶9

to take any coercive action against the Petitioner pursuant to Show Cause Notice dated 19.04.2017.

¶10

3. Mr. Nanda, learned Counsel for the Opposite Party No.4 appears through virtual mode and submits, as there was no legal barrier, in terms of the said Show Cause Notice dated 19.04.2017, the Petitioner was dismissed from service on 18.05.2017. He further submits, the Petitioner

¶11

Page 2 of 7

¶12

being an officer of the Bank, instead of challenging the said order before the Co-operative Tribunal, has simply filed an Additional Affidavit enclosing thereto the said order of dismissal.

¶13

4. Mr. Nanda, learned Counsel further submits, in view of the provision enshrined under Section 67-B of Orissa Co-operative Societies Act, 1962, shortly, the Act, 1962, the remedy of the Petitioner lies before the Co-operative Tribunal and the present Writ Petition is not maintainable. He also relies on the judgment of this Court reported in

¶14

2001 (Vol-I) OLR, 69 ( Pravash Chandra Das v. Urban cooperative Bank, Cuttack) to substantiate his submission.

¶15

5. Mr. Das, learned Counsel for the Opposite Party No.5, also appears through virtual mode and vehemently opposes as to the maintainability of the Writ Petition relying on the full Bench judgment of this Court in Banabihari Tripathy v. Registrar Cooperative Societies Odisha & Anr reported in 1988 Vol.II OLR 375.

¶16

6. It is pertinent to mention here that issues before the Full Court in Banabihari Tripathy (supra) were whether the Co-operative Societies registered under a Co-operative Societies Act as such will come within the fold of Art. 12 of the Constitution of India and are amenable to the writ jurisdiction of the High Court and whether the Co-operative Society is born under any statute or is discharging only such functions which may

¶17

Page 3 of 7

¶18

make it an ‘Instrumentality of the State’? The said queries were answered

¶19

by the Full Bench as follows:

¶20

“15. Although I have already answered the questions posed in the order of reference, for the sake of convenience, I may put the answers at one place.

¶21

Answer to question No. 1- A cooperative society on merely getting registered under the Co operative Societies Act does not acquire any status of becoming an authority to render it amenable to the writ jurisdiction of the High Court. The supervisory powers given to the Registrar is with objects of better working of the societies and to give them guidance of well-trained and expert officers.

¶22

Answere to question No.2- If a Co-operative Bank is born under or created by statute, then it may acquire the status of an ‘authority’ within the meaning of Art. 12 of the Constitution. Otherwise, it has to satisfy the essential tests formulated by the various decisions of the Supreme Court for which, however, there cannot be a strait jacket formula. However, it may not be necessary that the society must satisfy all the tests for qualifying to be an ‘authority’ and in a given case, only some of the prominant features may give it that status. But that must be so predominant that on tearing the veil, it may appear that the society is merely a projection of the State, the voice being that of the State and the hands also of the State.”

¶23

7. Mr. Mohapatra, learned Counsel for the Petitioner draws attention

¶24

of this Court to order dated 05.05.2017 and submits, since the Show Cause Notice itself has been issued by an unauthorized and incompetent person, even if there is alternative remedy, this Court rightly and

¶25

Page 4 of 7

¶26

consciously entertained the Writ Petition and ordered to issue notice to the Opposite Parties by passing a reasoned order on 05.05.2017. The said order is extracted below:

¶27

“Heard Mr. P.K. Mohanty, learned Sr. Counsel along with Mr. P.K. Pasayat, learned counsel for the petitioner.

¶28

Mr. P.K. Mohanty, learned Sr. Counsel for the petitioner states that the order in Annexure-8 dated 19.04.2017 has been issued by the person, who is not competent to do so, it is the Managing Committee who is competent to issue such order because the appointing authority of the petitioner is the Committee. It is stated that since the committee has not issued such letter, the same is without jurisdiction. Therefore, the petitioner has filed this application by filing the present writ petition.

¶29

Issue notice to the opposite parties.

¶30

Two extra copies of the writ petition be served on learned counsel for the State appearing for opposite parties no.1 and 5 by Monday (08.05.2017).

¶31

Requisites for issuance of notice to opposite party nos. 2 to 4 by speed post be filed by Monday (08.05.2017). Office shall send notice to the said opposite parties fixing an early returnable date.”

¶32

(Emphasis Supplied)

¶33

8. Mr. Mohapatra, learned Counsel further submits, after transfer of

¶34

the brief, it came to his notice that the Petitioner has already been dismissed from service vide office order dated 18.05.2017 and to bring

¶35

the said document on record, he has already filed an Additional

¶36

Page 5 of 7

¶37

Affidavit on 31.03.2022. However, inadvertently no I.A. could be filed for amendment of the Writ Petition. Accordingly, he prays for an adjournment enabling him to file appropriate application for amendment of the Writ Petition to assail the office order dated 18.05.2017. Mr. Mohapatra submits, in the meantime the Petitioner has already attained the age of superannuation on 31.05.2022 and if he succeeds, he can only

¶38

be compensated in terms of monetary. As the said prayer of Mr. Mohapatra for time to amend the Writ Petition is opposed by the learned

¶39

Counsel for the Opposite Parties, in the alternative, Mr. Mohapatra submits, his client may be granted leave to approach the Co-operative Tribunal and appropriate order be passed directing the Tribunal to conclude the said proceeding within a stipulated time frame as already six years have elapsed in the mean time from the date of dismissal of the Petitioner and a Counter Affidavit was filed by the Opposite Party No.4 much after i.e. on 16.11.2022, raising the said technical issue as to maintainability of the Writ Petition.

¶40

9. In view of such submissions made by the learned Counsel for the Petitioner , so also the rival submissions made by the learned Counsel for the Opposite Parties and the settled position of law, this Court is not inclined to grant time to the Petitioner, as prayed for, to amend the Writ Petition at this stage. However, since the order of dismissal is yet to be

¶41

Page 6 of 7

¶42

challenged by the Petitioner and the appropriate remedy lies before the Cooperative Tribunal in terms of Section 67-B of the Act, 1962, the Writ Petition is disposed of granting liberty to the Petitioner to approach the Cooperative Tribunal for redressal of his grievances, if any, in accordance with law. If such an application is moved U/s 67-B of the Act, 1962, by 7^th August, 2023 with an application for condonation of delay, so also certified copy of this judgment, the Tribunal would do well to condone the delay and decide the application of the Petitioner on merit

¶43

expeditiously, preferably within a period of six months from the date of filing such application.

¶44

Urgent certified copy of this judgment be issued as per Rules.
…….……………………
S.K. MISHRA, J.

¶45

…….……………………
S.K. MISHRA, J.

¶46

Orissa High Court
Dated, 5 th July, 2023/ Banita

¶47

Signature Not Verified

¶48

Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA Date: 10-Jul-2023 18:31:45

¶49

Page 7 of 7

Suresh Chandra Mohanty v. Registrar, Cooperative Societies and Ors.

Case brief

What is this about?

What did the court decide?

Suresh Chandra Mohanty v. Registrar, Cooperative Societies and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Laxmikanta Das Vs Brundaban Nayak

Committee Management,Bargarh Vs State of Odisha

Bichitrananda Barik Vs Omc,Bbsr

Paradeep Phosphates Vs L.a.Collector

Paradeep Phosphates Vs L.a.Collctor,Ctc

Paradeep Phosphates Vs L.a.Officer,Ctc