9911796707
TMI Blog1998 (3) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The facts relating to Special Civil Application No. 5552 of 1997: This petition has been filed on behalf of 23 petitioners in all. They all claim to have been appointed as clerks on the basis of the selections held in pursuance of the notice inviting applications published through advertisement dated 14-3-1996 for which interview call letters were issued on 16-12-1996 and the interviews were held on 28th, 29th and 30th, December, 1996. Initially appointment was given to them on probation and the orders were issued on 16-1-1997. The petitioners have also come with the case that their performance was considered by the respondent-Bank in the meeting of the Executive Committee held on 10-5-1997 and having found their work to be satisfactory, orders were issued on the very same day, i.e., on 10-5-1997 giving them regular appointment on permanent basis and also giving them the regular scale of clerk. It has been alleged that the election of the new Board of Directors took place in June/July, 1997 and there was a change of group of power in the Bank and instead of Shri Dilipbhai Nanubhai Sanghani, Shri Manubhai Kotadia took over as the new Chairman on 25/26-7-1997 and immediately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performance being found to be satisfactory, orders were issued on 10-5-1997 itself giving them regular appointment on permanent basis and confirming them in the regular scale of clerk. It is alleged that the elections of the Board of Directors were held in June/July, 1997 and with the change in the group in power, in place of Shri Dilipbhai Nanubhai Sanghani, Shri Manubhai Kotadia took over as Chairman on 25/26-7-1997 and immediately thereafter the decision was taken on 28-7-1997 itself to terminate the services of the petitioners and accordingly orders were issued on 28-7-1997. However, at present these petitioners are continuing in service on the strength of the interim order of This Court dated 1-8-1997. 6. Special Civil Application No. 5627 of 1997 has been filed by 4 petitioners who claim to have been appointed as clerks on the basis of the selection held in pursuance of the notice inviting applications vide advertisement dated 14-3-1996, for which interview call letters were issued on 16-12-1996, interviews were held on 28th, 29th and 30th December, 1996. According to the petitioners, their names were included in the waiting list prepared in the aforesaid selection and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed in the Bank as Clerk on 1-9-1957 and in due course he reached the position of General Manager on 30-5-1994. On 22-6-1994 the Registrar was informed about the wide experience and good work of the petitioner and the Registrar then granted approval for his appointment on 19-9-1994. On 6-9-1995 the respondent-Bank granted 3 years' extension to the present petitioner after his retirement. The petitioner then tendered his resignation on 19-6-1997 and the same was accepted on 5-7-1997. On 8-7-1997 the Life Insurance Corporation was intimated about the amount of gratuity and the same was given to the Gratuity Trust by Life Insurance Corporation on 26-7-1997 and the same was credited into the petitioner's Account. It is also the case of the petitioner that he is holder of Savings Account No. 258 with the respondent-Bank. Election of the new Board of Directors were held in June/July, 1997 and Shri Manubhai Kotadia took over as the new Chairman on 25/26-7-1997 and in the first meeting of the Board of Directors held on 28-7-1997 a decision was taken to freeze the petitioner's account. It is also the case of the petitioner that in his Savings Account No. 258 a sum of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1997: (i) Affidavit-in-reply dated 6-8-1997 (by respondent-Bank) (ii) Affidavit-in-rejoinder dated 11-8-1997 (by petitioner No. 1) Special Civil Application No. 5628 of 1997: (i) Affidavit-in-reply dated 6-8-1997 (by respondent-Bank) (ii) Affidavit-in-rejoinder dated 11-8-1997 (by petitioner No. 1) Special Civil Application No. 6135 of 1997: (i) Affidavit-in-reply dated 26-8-1997 (by respondent-Bank) (ii) Affidavit-in-rejoinder dated 26-8-1997 (by petitioner) (iii) Affidavit-in-reply dated 28-8-1997 (by respondent-Bank) (iv) Affidavit-in-rejoinder to the second affidavit-in-reply dated 12-9-1997 (by petitioner) 10. It thus appears that the respondent-Bank has sought to traverse the claim of the petitioners and sought to defend the impugned orders of the termination passed against the petitioners in Special Civil Applications Nos. 5552, 5573, 5617, 5627 and 5628 of 1997 and in Special Civil Application No. 6135 of 1997 the respondent-Bank has sought to defend the Resolution passed by the Bank freezing the Savings Account No. 258 of the petitioner Z. L. Vaghasia as also the letter dated 4-8-1997 sent to the petitioner by the respondent-Bank. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter II of the bye-laws. The objects are in the nature of doing the banking business. The manner of doing the business is based on co-operative movement. The bye-laws extensively provide as to what business the Bank shall carry out. The bye-laws provide for the constitution of the Board of Directors and their functions and duties also. The general guidelines provided by National Bank for Agriculture and Rural Development ('NABARD' for short) in respect of the Banks are that the Management cost of the Bank shall not be more than 2% of its overall functional cost. 1% cost of the functioning would be about ₹ 50/- lacs. In 1995-96, the expenses incurred by the respondent-Bank were about 2.41% towards the Management cost which has increased in the year 1996-97 to 3.41% and in case the present staff is continued it would go much higher. The function of the respondent-Bank is pure and simple business of banking and the manner of doing the business is based on co-operative movement, which is codified by the Statute and the Act known as Gujarat Cooperative Societies Act . According to the learned Counsel for the respondent-Bank only because the respondent-Bank is governed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., agency for implementation of the said Scheme. Under the said Scheme the liability of indemnification is to be shared by the General Insurance Corporation of India which is a Government organization and the State Group Insurance Fund, which is to be created by the State Government itself. A copy of the Scheme has been enclosed as Annexure 'J' to the rejoinder referred to as above. Mr. Patel has submitted that a study of this Scheme would show that the respondent-Bank is acting as a direct agent for this Scheme of Crop Insurance introduced by the Government of India. Reference has been made to the various clauses of this Comprehensive Crop Insurance Scheme in support of the argument that the respondent-Bank is working as an 'agency' or 'instrumentality' of the State. Reference has also been made to several provisions of the National Bank for Agriculture and Rural Development Act, 1981 to highlight the nature of functions, which can be said to have been entrusted to a Co-operative Society like respondent-Bank in the context of the provisions of the NABARD and the control of NABARD over Co-operative Societies like the respondent-Bank. Mr. Patel has also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration by the Registrar on the conditions mentioned in this section. According to Section 76 the qualification for the appointment of the Manager, Secretary, Accountant or any other officer or employee of the Society and the conditions of service of such officers and employees shall be such as may, from time to time, be prescribed; prescribed means prescribed by the Rules. Under Section 2(18) Rule means Rules made under this Act. Section 76B provides for the removal of the officers by the Registrar as also clothes the Registrar with the power to direct the Society to elect or appoint a person or a qualified member in the vacancy caused by such removal. Section 81 provides for supersession of the Committees of a Society having Registrar as its member, and in respect of a Committee of a Society which does not have the Registrar as its member, it has been provided that if the Registrar is of the opinion that the Committee is making persistent defaults or is negligent in the performance of the duties imposed on it by this Act or the Rules or the bye-laws or does anything which is prejudicial to the interest of the Society or its members he may supersede it. It is also provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Societies in particular, may issue directions to them, from time to time, and all Societies or the Societies concerned, as the case may be, shall be bound to comply with such directions. 14. The Gujarat Co-operative Societies Rules, 1965 (which will hereinafter be referred to as 'the Rules') have been framed to give effect to the various provisions of the Act including the sections to which reference has been made hereinabove, vesting powers on the Registrar and the manner in which the control is exercised by the Registrar with regard to the functioning of the Societies and their constitution, management and business. 15. Mr. Mangukia in support of his submissions on the question of maintainability of the petition that Amreli District Central Co-operative Bank Ltd., is not amenable to writ jurisdiction under Article 226 has placed reliance on the decision of the Supreme Court in Ajay Hasia v. Khalid Mujib Sehravardi (1981)ILLJ103SC , in which case the Supreme Court considered the question as to whether a College, administration and management of which are carried on by a society registered under the Jammu Kashmir Registration of Societies Act, 1898, could be hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agency of the Government and not as to how it is created. The inquiry has to be made not as to how the juristic person is born but why it has been brought into existence. It may be a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetical origin, it would be an 'authority' within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. Mr. Mangukia next cited the decision of the Supreme Court in the case of Section Section Dhanoa v. Delhi Municipality 1981CriLJ871 . In this case, the question for consideration before the Supreme Court was as to whether the definition of public servant under Section 21(12) of the I.P.C. does not include a civil servant working on deputation with Co-operative Society and as to whether for his prosecution the sanction under Section 197 Cr. P. C. was necessary. The Supreme Court held that a member of the Indian Administrative Service, whose services are placed at the disposal of a cooperative society (Super Bazaar) registered under the Bombay Co-operative Soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of other authority . It has also been observed that in a given case some of the features may emerge so boldly and prominently that a second view may not be possible. Reliance has also been placed by the learned Counsel for the respondent-Bank in the case of A.I.S.S.E. Association v. Defence Minister-cum-Chairman B.O.G., S.S. Society, reported in AIR 1989 SC 88. In this case the Supreme Court considered as to whether Sainik School Society is a State amenable to writ jurisdiction. The Supreme Court held that the employees of such Sainik School and Kendriya Vidyalaya form different classes and the plea of discrimination and equal pay equal work was not available. However, certain directions were given by the Supreme Court with regard to the conditions of the service of the employees. Mr. Mangukia placed strong reliance on V. I. Khalifa v. Satubha Tapubha Vaghela reported in, in which it has been held by the single Bench of This Court that Surendranagar Cooperative Bank Ltd., is not a State within the meaning of Article 12 of the Constitution and the issue of the writ would not be justified to rectify an alleged private wrong consisting of dismissal of the petitioner from service. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Fertilizer Co. Ltd. (G.S.F.C.) is not a State within the meaning of Article 12 of the Constitution. It has been thus held that Krishak Bharati Co-operative Ltd., cannot be said to be a State, or 'other authority' or 'instrumentality' of the State within the meaning of Article 12 of the Constitution of India and the petitions filed against it are not maintainable and on this ground alone the petitions were dismissed. The Division Bench while deciding this Letters Patent Appeal No. 375 of 1985 on the facts of that case came to the conclusion that manufacture of fertilizer was not a public duty, but is purely a manufacturing activity. It was a commercial undertaking run by the G.S.F.C. Ltd., and it manufactures and sells fertilizers just as other private and public sector Companies, who are in the same line. However, it appears that in this case the parties had arrived at an agreement between then which was filed in the Court and the Appeal filed by the G.S.F.C. Ltd. was allowed and disposed of in terms of the agreement between the parties. The next unreported decision relied upon by Mr. Mangukia is the decision dated 6-8-1997 in Special Civil Application No. 85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adras High Court held that the National Agricultural Co-operative Federation of India Ltd., (NAFED) is a Co-operative Society registered under the Delhi Co-operative Societies Act, in relation to its activity as canalising agency for export of onions to Singapore and Malaysia is an 'authority' as contemplated by Article 12. It was also held on the basis that the activity of NAFED was as a canalising agency and in the Scheme of canalisation, it is really the Government which acts through the canalising agency. In 1991 (1) SLR 209 The Gurdaspur Central Co-operative Bank Ltd. v. The Presiding Officer, Labour Court, Gurdaspur and Ors. the writ petition was held to be maintainable against the Co-operative Society by the Punjab and Haryana High Court. In Hari Om v. State of M.P. and Anr. a Division Bench of the Madhya Pradesh High Court held that Madhya Pradesh Rajya Laghu Van Upaj (Vyapar Avam Vikas) Sahakari Sangha Maryadit had been appointed as an 'agent' of the State under M. P. Tendu Patta (Vayapar Viniyaman) Niyamavali. The main benefit was to be derived by the State and not by the Sangh and it was found that in the very nature of things the State as such could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment departments, local authorities, public authorities, and statutory undertakings, and Corporations, are all public authorities. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. According to Supreme Court this is a striking departure from the English law, and under Article 226, writs can be issued to 'any person or authority' and further that it can be issued 'for the enforcement of any of the fundamental rights and for any other purpose'. Having reproduced Article 226 in this very para 82 at page 2207, the Supreme Court has noted the scope of this Article as has been explained by Subba Rao, J. in Dwarkanath v. I.T.O. [1965]57ITR349(SC) . While elaborating on this aspect of the matter, the Supreme Court has considered that Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the powers, the purpose for which and the person or authority against wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial conscious as under: (i) The High Court's power under Article 226 of the Constitution is as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any other purpose, even one for which another remedy may exist. (ii) Strictly speaking, the inhibitions recognised by the Courts in England upon the powers of the Courts to issue prerogative writs do not operate in India except as self-imposed restrictions by the Courts themselves; (iii) Wise and clear restraints on the use of extraordinary remedy have been indicated in various pronouncements of the Supreme Court and High Courts, and the High Courts will not go beyond those wholesome inhibitions. However, where the situation warrants or exceptional circumstances cry for timely judicial interdict or mandate, the Courts shall have the power to issue any writ, order or direction. In the words of the Supreme Court the mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the parity. The Supreme Court in this case has concluded that when an element of public interest is created and the Institution is catering to that element, a teacher, being an arm of the Institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. The writ petition was accordingly held to be maintainable. In Misc. Mazdoor Sabha v. State reported in , the Division Bench of This Court (1993)ILLJ695Guj considered the question of maintainability of the writ petition under Article 226 of the Constitution of India in detail. The Division Bench considered that sewing thread division of Ahmedabad Jubilee Mills had stopped working and all the divisions are closed and, therefore, the employees of Diwan Chemtex Industries Ltd., were not to be given work after working hours with effect from 3-2-1988 and on this ground the services of all its employees being 74 in number were terminated. Considering the import of the words any other authorities as contained in Article 226 of the Constitution of India, the Division Bench considered the moot question as to whether a private Company is covered by the phrase 'any person' as employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 13-6-1994, the Division Bench decision of This Court in L.P.A. No. 375 of 1985 decided on 1/2 February, 1994, Special Civil Application No. 855 of 1996 decided on 6-8-1997 based on V. 1. Khalifa's case (supra) and the Division Bench Judgment of This Court reported in 1984 71 GLH 50 (supra), Special Civil Application No. 4255 of 1982 decided on 4-4-1984 and Special Civil Application No. 2885 of 1984 decided on 14-8-1984 referred in Paras 13-14 of the V. I. Khalifa's case (supra) and other decisions in this regard relied upon by Mr. Mangukia and several other decisions, which have been cited by Mr. Jayant Patel, it is clear that even if it is accepted as a proposition of law that a Co-operative Society or even a Company registered under the provisions of the Companies Act can be an instrumentality or agency of the State and it is not necessary that such body must be a creature of the statute, it cannot be held that the Amreli District Central Co-operative Bank Ltd., is an 'authority' within the meaning of Article 12 of the Constitution of India. True it is that in Special Civil Application No. 2885 of 1984 decided on 14-8-1984 there is no elaborate discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section Co-op. Land Devep. Bank Ltd. (supra) the Bombay High Court considered the case of the Maharashtra State Co-operative Land Development Bank Ltd., which was a creature of the Statute. In M. K. Agarwal v. Gurgaon Gramin Bank reported in 1988 (1) SLR 790 the Supreme Court was directly concerned with the Gurgaon Gramin Bank and the State Rural Bank was constituted under Regional Rural Banks Act, 1976 and the Supreme Court found that it was made of State's 'flesh and bones' and was, therefore, an instrumentality of the State. Therefore, these decisions are of no avail in the present case. The decision rendered by the Division Bench of Rajasthan High Court in the case of Phool Chand, reported in 1986 (1) SLR 222 (supra), in which Bharatpur Central Co-operative Bank Ltd., Bharatpur was held to be an 'instrumentality' of the State, does support the contention of Mr. Jayant Patel in this regard, but in view of the decisions of our own High Court, the respondent-Bank cannot be held to be an 'authority' on the basis of the Division Bench decision of the Rajasthan High Court. In AIR1982Mad247 (supra), the National Agricultural Co-operative Federation of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Societies. This, according to Mr. Patel, is a Governmental function discharged by the respondent-Bank. (ii) The respondent-Bank is a District level Federal Bank and is also a specified Co-operative Society under Section 74C of the Act to which special importance is given by the Bank and under Section 74C the Government has the power to appoint a member of the Board or Director of the respondent-Bank and, therefore, the respondent-Bank should be taken as an 'agent' or 'instrumentality' of the State. (iii) The Central Government had introduced Comprehensive Crop Insurance Scheme from 1985-86 and as per this Scheme a District level bank acts as the Nodal agency-Bank, i.e., the agency for implementation of the said Scheme and under the said Scheme the liability of indemnification is to be shared by the General Insurance Corporation of India, which is a Government organisation and the State Group Insurance Fund is created by the State Government itself. The copy of the Scheme is at Annexure 'J' to the rejoinder and Mr. Patel's contention is that the study of this Scheme would show that the respondent-Bank is acting as a direct agent for this Scheme o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to the control of the Registrar. Mr. Patel has submitted that the aforesaid submissions have not been considered and dealt with in any of the earlier decisions on this point and all these submissions require an effective adjudication in detail. His contention is that on the basis of the aforesaid submissions, the respondent-Bank is certainly discharging functions of public importance related to Government functions, which is a relevant factor so as to classify the respondent-Bank as an 'agency' or 'instrumentality' of the State. 21. I have considered the aforesaid submissions. I find that even with the aid of the submissions, as aforesaid, it is not possible to hold that the functions, as aforesaid, discharged by the respondent-Bank are of public importance closely related to Government functions. In such matters, when a Co-operative Society is working as a Banking Society, it may have to conform to the Scheme, which may be evolved by the agencies like NABARD or the Scheme such as the Comprehensive Crop Insurance Scheme by the Central Government and the Societies like the respondent-Bank may be used for the purpose of implementation of such Scheme as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not meet the test so as to come within the ambit of 'other authorities' or 'agency' or 'instrumentality' of the State within the meaning of Article 12 of the Constitution of India. 22. However, the matter does not end here. The question still remains as to whether in the facts and circumstances of the case, any writ, order or direction can be issued against the respondent-Bank under Article 226 of the Constitution of India. Mr. Jayant Patel appearing on behalf of the petitioners has resolutely argued that the scope of Article 226 is wider than that of Article 32 of the Constitution of India. The jurisdiction of the Supreme Court under Article 32 can be invoked only in cases where there is a breach of the fundamental right and fundamental rights can be enforced only against those bodies which are covered by Article 12 of the Constitution of India. But so far as Article 226 is concerned, the writ can be issued even for the purpose of rights, which are not fundamental, and as has been provided in Article 226 it is to any person and for any other purpose. Therefore, Article 226 is couched in a large and wider terminology and it has been so considered, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder or direction in the nature of mandamus cannot be denied on the ground that the body against which the writ is sought to be issued is not an 'authority' or 'agency' or 'instrumentality' of the State under Article 12 nor it can be denied on the ground that the duty to be enforced is not imposed by the statute. The following quotation on the development of this law by Professor De Smith has been referred by the Supreme Court in Para 21 of the judgment as under: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. (Judicial Review of Administrative Action 4th Edn. p. 540). The Supreme Court has shared this view and has opined that the judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found' and technicalities should not come in the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ltd. 's case (supra), a Division Bench decision rendered by the Andhra Pradesh High Court, in which the reasoning given in the aforesaid Supreme Court decisions has been summarised as has already been quoted in the earlier part of this order. And the last but not the least case cited by Mr. Patel in this regard is a Division Bench decision of our own High Court reported in (supra), which has also been discussed in the earlier part of this order and in view of the authoritative pronouncements by the Division Bench of This Court in this Misc. Mazdoor Sabha 's case (supra), This Court has no hesitation in holding that in a given case a writ order or (1993)ILLJ695Guj direction can be issued against a co-operative society like the respondent-Bank even if it is not an 'authority' or an 'agency' or 'instrumentality' of the State under Article 12 of the Constitution of India, in the writ jurisdiction of This Court in the nature of public law remedy. The only rider is that it cannot be invoked for enforcement of any private right against such body. The only question, therefore, now remains is as to whether there was any statutory obligation on the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equally efficacious remedy. In absence of any such equally efficacious remedy, the Court does not find it a fit case to throw away these petitions on the question of alternative remedy and this objection is not found to be tenable. Thus, all the preliminary objections raised on behalf of the respondent-Bank fail. 24. Coming to the merit of the case, in five out of six petitions, i.e., Special Civil Application Nos. 5552, 5573, 5617, 5627 and 5628 of 1997, the grievance has been raised against the termination of the petitioners and in the 6th petition, i.e., Special Civil Application No. 6135 of 1997 the prayer has been made by the Ex-General Manager of the respondent-Bank so as to allow him to operate his Savings Bank Account No. 258. I would, therefore, first deal with the 5 Special Civil Applications, numbered as above, with regard to the termination of the employees. The facts relating to each of these 5 Special Civil Applications have been briefly stated in earlier part of the order in Para 3. On the basis of the pleadings of the parties and the grounds which have been urged by both the sides, the following questions arise for consideration and adjudication by This Court: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld in pursuance of the notice inviting application through advertisement dated 14-3-1996 for which interviews were held on 28th, 29th, 30th, December, 1996 and on the basis of their selection, they were also appointed on probation vide orders dated 16-1-1997. Thereafter, the Executive Committee met on 10-5-1997 and orders were issued on 10-5-1997 itself giving them regular appointment on permanent basis and confirming them in the regular scale of clerk. Their services were also terminated on 28-7-1997 in the like manner, as aforesaid. The 4 petitioners, who are concerned in Special Civil Application No. 5627 of 1997, were also appointed as Clerks on the basis of the selection held in pursuance of the notice inviting applications dated 14-3-1996 in the same manner as aforesaid. The names of these 4 persons were first included in the waiting list and petitioner Nos. 1 to 3 were initially appointed on probation on 15-5-1997 and the 4th petitioner was appointed on probation on 19-7-1997 only. Later on, the petitioner Nos. 1 to 3 were made permanent on 19-7-1997 on the basis of the decision taken at the meeting of the Executive Committee of the respondent-Bank while the petitioner No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing as daily wagers since November 1996 they were made permanent by the predecessor Board of Directors on 19-7-1997 only. In any case, the factum of the appointment of these 45 employees as Clerks, Mantris and Peons on 16-1-1997,12-3-1996,16-1-1997 and 15-5-1997 and making 5 daily wager peons, who were working as such since November 1996, as permanent on 19-7-1997 and their termination on 28-7-1997 is not disputed. 26. Whatever may have been the objections with regard to the selections and appointments given to these petitioners, the fact is that these 45 petitioners had been given appointments in the respondent-Bank and they were continuing in the service of the respondent-Bank from the dates, as aforesaid, irrespective of the fact whether they are treated as ad hoc or temporary or probationers or permanent. Mr. Patel has invited the attention of This Court to the provisions of the Bombay Industrial Relations Act and it has been contended that under Rule 33 of the Gujarat Co-operative Societies Rules the Managing Committee of the Society has the power to appoint, to give salary to staff for the conduct of the business of the Society and to define their duties. Mr. Patel has inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 filed by the respondent-Bank, which reads as under: 28. With reference to averments made in Para 2.2 of the petition, I offer no comments. I crave leave to refer to and reply upon the provisions of the Order at the time of hearing of this petition. It is, therefore, clear that the factum of the registration of the bye-laws and the bye-law 22 with regard to termination of employment, as has been quoted by the petitioners, has not been disputed. According to Standing Order No. 22(1) appointment of the permanent employee or probationer can be terminated by one month's notice or on payment of one month's wages in lieu of notice. The reason for termination under clause (1) is required to be recorded in writing as provided in Standing Order No. 22(2). According to Standing Order No. 22(5), the service of any employee, other than permanent or probationer, may be terminated on week's notice. It is, therefore, clear that the respondent-Bank as an employer was under an obligation under the aforesaid Standing Orders, registered under the Bombay Industrial Relations Act, which is at par with statutory obligation and yet the services of each of these 45 petitioners were term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on 28-7-1997. In such like matters, when the country is facing the grave problem of unemployment, employment is a very valuable right related to livelihood. If at all the new Board of Directors had found in a period short of 3 days of its taking over, that the selections and appointments given to the petitioners were improper or that there was any irregularity committed by the earlier Board of Directors in appointment of these petitioners or that their selection was not in accordance with law or that appointments had not been given to them in accordance with the bye-laws, and the services of these petitioners were required to be terminated for any reason including the grounds of lack of eligibility on the part of these petitioners for the posts held by them, the new Board of Directors could not terminate their services without following the relevant Standing Orders which were applicable. In such matters the malice or lack of bona fides operates in a subtle manner. It may be placing a heavy burden on the petitioners to prove by any positive evidence that the action of the new Board of Directors was mala fide and, therefore, the legitimate inference has to be drawn from the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is given or by making a false assertion or withholding of a disclosure, which could have disentitled him from seeking employment, would stand on a different footing and therefore, it is not necessary for This Court to consider the cases, which have been cited on behalf of the respondent-Bank in which the decisions have been taken on the premises that a fraud had in fact been perpetrated. The essence of the matter is that the petitioners in the present cases had appointments based on selection and were continuing in the employment since 1996/1997, as have been given in the earlier part of the order and therefore, if their services were sought to be terminated on any of the grounds, which are now disclosed before This Court by the respondent-Bank, such termination orders could not have been issued without affording an opportunity of hearing to these petitioners. In any case, the respondent-Bank was certainly under an obligation to give atleast an action inspired notice to these petitioners that for such and such reasons their services were intended to be terminated, that they were lacking eligibility with regard to age, qualification or experience, that their selection was not in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners were entitled to an opportunity of hearing, at least an action inspired notice, and the minimum requirements of principles of natural justice. Admittedly, none of these requirements have been complied with by the respondent-Bank at the time of passing the termination orders with regard to these 45 petitioners, upon whom the termination was inflicted at a stretch on the same day, i.e., on 28-7-1997 so as to make this order a fait accompli against them and, hence their termination as such cannot be sustained in the eye of law. 29. It may also be mentioned that during the course of hearing a suggestion was made to the learned Counsel for the respondent-Bank that if the Bank so chooses it was open for them to withdraw the present impugned orders and to pass orders afresh after affording a reasonable opportunity of hearing to the concerned petitioners on the ground on which their services were sought to be terminated. But Mr. Mangukia after taking instructions from the Chairman of the respondent-Bank, stated that the respondent-Bank was not prepared to follow such course of action and, therefore, the matters were heard further in detail. 30. The upshot on consideration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic officials or statutory body and according to the observations of Subba Rao, J. in Dwarkanath v. Income Tax Officer, reported in , Article 226 confers a wide power on the High Courts to reach injustice wherever it is found and, therefore, This Court considers it to be a fit case for issue of the writ against the respo [1965]57ITR349(SC) ndent and accordingly all these Special Civil Applications are allowed and the termination orders passed qua each of the petitioners in these 5 Special Civil Applications on 28-7-1997 are hereby quashed and set aside and it is ordered that all the petitioners shall be entitled to all consequential benefits. Rule is made absolute in all these 5 Special Civil Applications, i.e., Special Civil Application Nos. 5552, 5573, 5617, 5627 and 5628 of 1997. No order as to costs. Special Civil Application No. 6135 of 1997: 31. So far as the petitioner in this Special Civil Application is concerned, it may be pointed out that this petitioner had initially joined as a Clerk on 1-9-1957 and according to him in due course of time he reached the position of General Manager on 30-5-1994 and the Registrar of Co-operative Societies had granted approval for hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Payment of the Gratuity Act. If the petitioner gives appropriate security, he may be permitted to withdraw the said amount. 32. It is thus obvious that the real dispute is about the security which had not been furnished by the petitioner in terms of the document dated 15-5-1996, which had been annexed as Annexure R/l with the affidavit-in-reply dated 28-8-1997 and the respondent-Bank is of the opinion that the petitioner was guilty of some misconduct. On behalf of the petitioner, it has been stated that he had given the security of the amount for which he was required to give security at the time of his appointment and even now he was prepared to give the security for a sum of ₹ 20,000/- as has been mentioned in the document Annexure R/l dated 15-5-1996. Thus, the petitioner is ready and willing to give the security for a sum of ₹ 20,000/- as mentioned in Annexure R/l and so far as other allegations regarding misconduct or that Board of Directors in predecessor had favoured the petitioner are concerned, the petitioner may be subjected to any inquiry in accordance with law, but merely because the new Board of Directors felt that he had been favoured or that he had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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