IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 19457 of 2010 KARYA NAND SINGH, Son of Late Sitaram Singh, resident of Village Ismilpur, Post Office- Bargaon, P.S. Sirdala, District- Nawadah. -------------Petitioner Versus 1. THE STATE OF BIHAR 2. The Nawadah Co- Operative Bank, Nawadah, through its Managing Director Nawadah Co- Operative Central Bank, Nawadah. 3. The Registrar, Co- operative Society, Bihar, Patna. 4. The Managing Director, Nawadah, Co-Operative Bank, Nawadah. --------------Respondents. With CWJC No. 20381 of 2010 PRAMOD KUIMAR Son of Pandit Suresh Jha, Resident of Village Sakra, Post- Sisawa, Police Station Halsua, District- Nawada. -----------------Petitioner Versus 1. Nawada Central Co-Operative Bank Ltd, through its Managing Director. 2. Managing Director, Nawada Central Co- Operative Bank Ltd. Nawada, Bihar. 3. Registrar, Co-Operative Societies, Patna, Bihar 4. Joint Registrar, Co-Operative Societies Magadh Division, Gaya, Bihar. ------------Respondents With CWJC No. 20013 of 2010 ARBIND KUMAR Son of Shri Rama Shankar Singh, Resident of Ram Nagar, Police Station Nawada Town Thana, Post Nawada, District- Nawada. ------------Petitioner Versus 1. Nawada Central Co-Operative Bank Ltd. through its Managing Director 2. Managing Director, Nawada Central Co-Operative Bank Ltd. Nawada, Bihar. 3. Registrar, Co-Operative Societies, Patna, Bihar. 4. Joint Registrar, Co-Operative Societies Magadh Division, Gaya, Bihar. --------------------Respondents With CWJC No. 272 of 2011 NIRANJAN KUMAR, S/O Shri Jagat Prasad Singh, R/O Village+ P.O.- Bhadseni, P.S.+Dist- Nawadah. --------------------Petitioner 2 Versus 1. Nawada Central Co-Operative Bank Ltd. through its Managing Director. 2. Managing Director, Nawada Central Co-Operative Bank Ltd. Nawada, Bihar. 3. Registrar, Co-Operative Societies, Patna, Bihar. 4. Joint Registrar, Co- Operative Societies, Magadh Division, Gaya, Bihar ---------------Respondents. ---------------- For the Petitioner:- Mr. Tej Bahadur Singh, Sr. Advocate Mr. Brisketu Sharan Pandey, Advocate Mr. Bhasker Shankar, Advocate Mr. Sanjeev Ranjan, Advocate Mr. Satish Narayan Sinha, Advocate. Mr. Syed Hussain Majeed, Advocate For the Respondent Bank:- Mr. Purushottam Jha, Advocate. ------------------------ 5. 28.01.2011 Heard learned counsels for the parties. All these four writ applications have been filed for quashing the separate orders dated 28.9.2010 issued by the Managing Director, Nawadah Central Co-operative Bank, Nawadah by which the services of the respective petitioners have been terminated on the ground of defalcation of money of the bank. The short facts of this case are that all the petitioners were working at Rajauli Branch of the Nawadah Central Co-operative Bank, during different periods and against each of them certain allegations of defalcation of bank’s money was made. An internal enquiry was made in which it was found that the writ petitioners had committed defalcation 3 of different amounts of money. By order dated 15.9.2010, an enquiry officer was appointed for conducting departmental proceedings with a direction to conclude the proceedings and submit his report within four weeks, against the different petitioners who were already under suspension. According to the petitioners, no steps were taken for conducting the departmental enquiry in terms of the order dated 15.9.2010 and in the meantime by the impugned order dated 28.9.2010, all the four petitioners were dismissed from service on the allegation of defalcation of bank’s money relying upon the preliminary enquiry report dated 5.2.2009. Learned counsels for the petitioners submit that the petitioners could not have been dismissed without holding a proper departmental enquiry after providing opportunity to the petitioners of being heard, but no such procedure has been followed and their services have been terminated. In support of the stand learned counsels for the petitioners rely upon the Service Rules of the Staff of the Central Co-operative Banks framed under Section 66 (B) of the Bihar Co-operative Societies Act, 1935 by the Co-operative Department, Government of Bihar, under Rule 23 of which a 4 detailed provision has been made for the conduct of disciplinary proceedings and the award of punishment including that of major punishment of dismissal, etc. It is urged that no such procedure laid down in the service rules has been followed and thus there has been complete violation of the service rules as also the principles of natural justice. With regard to writ petitioners Arbind Kumar in C.W.J.C. No. 20013 of 2010 and Niranjan Kumar in C.W.J.C. No. 272 of 2011, it is submitted that they being officers the Managing Director has no jurisdiction to pass an order inflicting major punishment upon them under Rule 23 (2) of the Rules, the competent authority for inflicting major punishment on officers after a departmental proceeding being the Board of the Bank. Counter affidavits have been filed on behalf of the respondent bank, in which the stand taken is that the petitioners have committed huge amount of defalcation during different periods of time in respect of which, a team of financial experts and officials enquired into the matter and submitted its report on 5.2.2009. A total loss of Rs. 68,13,480/- has been caused to the Bank and different sums of defalcation has been committed by 5 the different petitioners. It is further stated in the counter affidavit that pursuant to the said report, by notice dated 6.2.2009 all the six persons were directed to deposit the amount defalcated within a period of three days otherwise they would be terminated from their services. However, no deposit has been made by the petitioners despite the reminders and warning given. Reliance is also placed upon Bye Law 49 (E) of bye laws and Section 14 (3) (9) of the Act to show that the Managing Director is competent to take disciplinary action against the petitioners. The further stand taken is that the order is appealable under Rule 24 of the rules. It is, however, admitted that Rule 23 of the Service Rules states that a major punishment can be inflicted only after a proper departmental enquiry. On a consideration of the materials on record it is evident that the impugned order has been passed without complying with the principles of natural justice and in violation of the statutory rules relating to the service of the staff of the bank. The petitioners have rightly asserted that no such punishment of dismissal could have been imposed without holding a proper departmental enquiry not 6 only according to rule 23 of the service rules but even otherwise as per the requirements of the principles of natural justice. It is evident from the facts and materials on record that the enquiry officer has been appointed but even before he could conduct the departmental enquiry and submit his enquiry report, the Managing Director in an arbitrary and whimsical manner has terminated the services of the petitioners on the charges of defalcation imposed against them. The said order cannot stand either on the ground of natural justice or in terms of the service rules. So far as petitioners Arbind Kumar and Niranjan Kumar are concerned, it is only the Board of Directors of the Bank which was competent to pass orders of their dismissal/termination and it was not open to the Managing Director to pass such order in view of the clear provisions made in the service rules. So far as the stand of the respondents that there being provision for appeal under Rule 24 of the Service Rules and thus the writ petition is not maintainable is concerned, this Court does not find any substance in the said stand. The Bar of alternative remedy is a rule of prudence and 7 discretion and it is not an absolute bar. If the Court finds that the impugned order suffers from lack of jurisdiction, including violation of the principles of natural justice, then it is open to the Court to interfere with the said order. Reference in this regard may be made to the decision of the Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Mark, Mumbai and Ors.: (1998) 8 SCC 1. Thus in the light of the aforesaid discussions, these writ applications are allowed and all the impugned orders dated 28.9.2010 are quashed. However, it would be open to the authorities of the respondent bank to proceed afresh in the matter after complying with the service rules and the principles of natural justice. Anand Kr. ( Ramesh Kumar Datta, J.)