Ramnandan Prasad, J.:— This writ application has been filed for quashing an order of termination of the services of the petitioners dated 28.5.1985, a copy of which is Annexure-11 to this writ application as also the direction of the Registrar, Co-operative Societies, Bihar, dated 26.6.1984, as contained in Annexure-7, which motivated the passing of the impugned order (Annexure-11).
2. The case of the petitioners is that in response to an advertisement issued by respondent no. 3 Deoghar-Jamtara Central Co-operative Bank (hereinafter referred to as the Bank) for the posts of Peons, Clerks, Stenographers and Typists, these five petitioners submitted applications for the posts of Peons. In due course they were called for interview and were selected for appointment. These petitioners were eventually appointed as Peons by letter dated 5.3.1984 issued by respondent no. 3 and they joined their respective post. In due course they were also confirmed-petitioner nos. 1, 2 and 4 by order dated 10.9.1984 and others by order dated 22.9.1984 In fact, 43 appointments for different posts were made by respondent no. 3 and all of them joined their posts in the same manner. After sometime, however, the payment of salary was stopped to all the 43 employees including the petitioners and as such they represented their case before the Honorary Secretary of the Bank on 6.3.1985 The Honorary Secretary, however expressed his inability to pay Page: 271their salary to them in view of the letter of the Registrar of the Co-operative Societies, Bihar (Annexure-7). Even before the issuance of the said letter dated 26.6.1984 (Annexure-11) an order for termination of their services was passed, which was challenged by some of the employees, namely, Binod Kumar Singh in C.W.J.C No. 4112 of 1983 in which their stand was that the Registrar, Co-operative Societies, Bihar, or even the State Government had no authority to terminate the services of the employees of the Co-operative Bank. This writ application was allowed by a Division Bench of this Court which also quashed the order of termination of the services of the petitioners of that case, holding that the State Government or even the Registrar of the Co-operative Societies had no power to terminate the Services of the employees of the Bank. Annexure-8 is a copy of this judgment.
3. Inspite of the aforesaid decision, respondent no. 2 i.e Registrar of the Co-operative Societies, Bihar, directed respondent no. 3 to terminate the services of the petitioners and other employees of the Bank by his letter dated 26.6.1984 (Annexure-7). Some of the employees affected by this order, namely Bipin Pd. Singh challenged the said order in C.W.J.C No. 2002 of 1985. A division Bench of this Court, of which I was also a member allowed this writ application and quashed the said order of termination (Annexure-7). A writ of mandamus was also issued to treat the petitioners as in service continuously from the date of their appointment and to make payment of their salary to which they were entitled to in accordiance with law. Annexure-9 is the copy of this Judgment. Respondent nos. 3 and 4 moved the Supreme Court in S.L.P No. 9695 of 1985 against this judgement, but it was dismissed on 10.10.1985
4. In the meantime, on 28.5.1985 i.e during the pendency of the Special Leave Petition before the Supreme Court respondent no. 3 terminated the services of all the 43 employees aforesaid including the petitioner. Annexure-11 is the copy of this order. It may be clarified here that by this time the Board of Directors of Deoghar Jamtara Central Co-operative Bank had been superseded by the Government and the Deputy Commissioner of Deoghar was appointed as Special Officer of the Bank and this order of termination (Annexure-11) has been passed by him. However, after the dismissal of the Special Leave Petition by the Supreme Court respondent no. 3 reinstated 19 persons, who were petitioners in C.W.J.C No. 2002 of 1985 by his order dated 18.11.1985 and refused to reinstate the present petitioners, as they were not the petitioners in the said writ petition. The petitioners met the Executive Officer of the Bank, namely, Deputy Commissioner in this connection but to no result, and hence they have been forced to file this writ application.
5. Only the Bank (respondent no. 3) has filed a counter-affidavit. Its case is that the Executive Officer of the Bank has issued an advertisement for appointment to the posts of Assistants, Stenographers, Typists and Peons, and many applications were received in response thereto. The Executive Officer thereafter fixed 29.9.1984 as the date for interview, but the Deputy Commissioner, Deoghar, asked him not to do so, as proper procedure was not followed while inviting applications. Accordingly, the Executive Officer postponed the interview and communicated this fact to the Secretary, Co-operative Department, Government of Bihar, and others by his letter no. 387 dated 28.1.1985 But the then Honorary Secretary of the Bank Sri Page: 272Jawahar Prasad ignored the said advice of the Deputy Commissioner and the decision of the Executive Officer to postpone the intersview and proceeded to appoint 43 persons including these petitioners on purely temporary and ad-hoc basis, which was illegal on account of different omissions and commissions as enumerated in paragraph no. 4(d) & (e) of the counter-affidavit. It has been asserted that on account of these illegal appointments the Bank had to suffer a loss of Rs. 96,000/- per year. All these appointments were made against anticipated vacancies which were likely to occur in view of the proposal to open new Branches which were, however, never opened. Indeed the Bank was running at a loss and the loss had gone upto Rs. 55.05 lakhs on 30.6.1983 On account of the arbitrary and illegal decision of the Honorary Secretary in appointing those 43 persons the liabilities of the Bank increased to Rs. 5.28 lakhs per year. Neither any vacancy existed for these appointments nor the financial condition of the Bank permitted the appointment of so many persons. But, ignoring all these considerations the Ex-Secretary made the aforesaid appointments. It has also been alleged that these appointees had no work at all and they used to draw their salaries without any work. It was in this background that the Deputy Commissioner, Deoghar, by his D.O Letter No. 552 (residence) dated 9.3.1985 addressed to the Executive Officer of the Bank cancelled the appointments made by the Bank and directed the Executive Officer not to accept their joining report. The Executive Officer, however, failed to persuade the Ex-Secretary to cancel the appointments. When the State Government came to know about these illegal appoinments, the Additional Secretary to the Government of Bihar in the Co-operative Department by his memo no. 1141 dated 14.5.1984 directed the Honorary Secretary of the Bank to cancel the illegal and irregular appointments made by him after 1.1.1984 The Ex-Honorary Secretary, however, did not obey this direction of the State Government and went on paying salaries to these appointees. Faced with this situation the State Government superseded the Board of the Directors of the Bank and the said Honorary Secretary ceased to function with effect from 21.5.1985 on which date the Deputy Commissioner, Deoghar, took over as Special Officer of the Bank. All the powers of the Board of Directors were vested in the Special Officer. The Deputy Commissioner, Deoghar, in exercise of his powers as Special Officer, cancelled the appointments of all the 43 persons on 28.5.1985 (vide Annexure-11) as the appointment of these persons was illegal.
6. The crucial question which arises for decision in this case is as to whether the order of termination of the services of the petitioners by the Deputy Commissioner-cum-Special Officer of the Bank by his order dated 28.5.1985 (Annexure-II) is valid or not. A perusal of last portion of this order would show that this order of termination was being passed in pursuance of the Letter no. 552 dated 9.3.1984 and Letter no. 210 dated 9.3.1984 sent by the Deputy Commissioner, Deoghar, and Letter no. 1141 dated 14.5.1985 of the Additional Secretary, Co-operative Department, Government of Bihar. The letter of the Additional Secretary has been annexed as Annexure-4 to the counter affidavit.
7. This letter (Annexure-4) is addressd to the Honorary Secretary of the Bank and there is a clear direction therein to cancel the appointments, which, according to the Government, were made illegally for the reasons stated therein. There is a further direction therein that Page: 273this order of the Government should be strictly followed, otherwise legal steps will be taken against the Board of Directors of the Bank. So, there is a clear mandate of the State Government in this letter to the Bank to terminate the services of the 43 employees and this mandate was sought to be enforced under the threat of dissolution of the Board of Directors of the Bank.
8. The aforesaid two letters sent by the Deputy Commissioner, Deoghar, to the Executive officer of the Bank have been annexed as Annexures 2 and 1 respectively to the counter affidavit. These letters were sent by the Deputy Commissioner in the capacity of a functionary of the State Government and there is a direction therein to cancel the appointment as directed by the State Government.
9. Thus, there is a clear direction of the State Government in the aforesaid three letters to the respondent-Bank to cancel the said appointments forthwith. The order of termination (Annexure-11) dated 28.5.1985 passed by the special officer of the Bank was evidently made in pursuance of the directions contained in those letters and as such it cannot be said that the Special Officer of the Bank had acted independently in terminating the services of the petitioners and others. It has not been disputed on behalf of the petitioners that the Special Officer bad the authority in law to terminate the services of the petitioners and others in accordance with law for some valid reasons. But, the submission of the learned counsel for the petitioners is that in this case the Special Officer of the Bank has not exercised his own discretion or own judgment and had passed the order of termination simply in obedience to the direction given by the State Government which had been communicated to him through the Additional Secretary of the Co-operative Department as also through the Deputy Commissioner of Deoghar. It may be a coincidence that at the time when the impugned order was parsed, the Deputy Commissioner happened to be the Special Officer of the Bank, but that would not change the position, as he had sent the two letters (Annexures 1 and 2) in the capacity of a functionary of the State Government and had passed the impugned order of termination in obedience to the directions of the State Government as contained in the letter of the Additional Secretary, in the capacity of the Special Officer of the Bank. So, it is a clear case in which there has been no independent decision of the Special Officer for terminating the services of the petitioners and others and the order of termination has been passed by him in obedience to the direction on the State Government.
10. Now, the question arises as to whether the State Govt. had the legal authority to give direction for cancellation of the appointment to a Co-operative Bank. Learned counsel for respondent no. 3 as well as learned Government pleader no. 6 appearing on behalf of respondent nos. 1 and 2 submitted that the State Government had the authority to issue such a direction under section 66-B of the Bihar and Orissa Co-operative Societies Act, This section is as follows:—
“Notwithstanding anything contained in this Act or the rule and bye-laws made thereunder, the State Government may, from time to time, by special or general order, determine the nature and number of posts to be created and the mode of recruitment of personnel by Cooperative Societies and prescribe among other things:
(1) the qualifications, age and experience,
(2) the pay scale and other emoluments,
(3) the method of recruitment,
(4) the conditions of service, and
(5) the disciplinary procedure to be followed.”
11. A mere reading of this section would convince anyone that it does not authorise the State Government to issue a direction to a Cooperative Bank or Society for terminating the service of any of its employee. In fact, this section gives power to the State Government to lay down general policy with regard to the recruitment including the qualifications, age, experience, pay scale etc., and the method of recruitment and the procedure to be followed therefor, besides the conditions of service. This section does not even speak about the termination of service, far from authorising the State Government to issue any direction in this regard. In fact, it does not envisage anything beyond the stage of appointment. A similar stand was taken on behalf of the State Government in C.W.J.C No. 4112 of 1983 and it was forcefully repelled by a Division Bench of this Court. Similar view was taken by a Division Bench of this court in C.W.J.C no. 2002 of 1985. As said above, the special leave petition filed against the later decision was dismissed by the Supreme Court. So, on principle as well as precedent the submission of the learned counsel for the respondents has simply to be noticed and rejected.
12. Thus, it is manifest that the State Government or any of its functionary had no jurisdiction to issue direction to the respondent-Bank to cancel the appointment of the petitioners. Of course, as said above, the Bank, in its own discretion, could have cancelled the appointments in accordance with law, but here it is not a case in which the Bank has cancelled the appointment on its own. It is apparent from Annexure-11 that it is the instruction of the Government which motivated the Special Officer to terminate the services of the petitioners and others. In fact, the Special Officer issued the order of termination in obedience to the fiat issued by the State Government. Thus, it is manifest that the order under Annexure-11 terminating the services of the petitioners was not passed by the Bank on the basis of its own judgement but was passed in compliance of the unauthorised direction of the State Government. The Special Officer complied with this direction without taking his own decision after examining the pros and cons of the matter.
13. That being so, the impugned order of termination (Annexuce-11) cannot be sustained in the eye of law and has to be quashed. Since the State Government has no jurisdiction to issue such a direction, the direction of the State Government as contained in Annexure-4 to the counter-affidavit (letter of the Aditional Secretary, Co-operative Department dated 14.5.1984) has also to be quashed.
14. It is, however, made clear that this court has not considered whether the appointment of the petitioner and others was illegal and whether the same could be cancelled or terminated by the respondent-Bank. It will be upto the respondent-Bank to examine the matter and take a decision of its own in accordance with law. In the result, this application is allowed and the order of termination of the services of the petitioners as contained in Annexure-11 to the writ application is quashed. Annexure-4 to the counter-affidavit, which is a letter dated 14.5.1984 sent by the Additional Secretary, Co-operative Department, is also quashed. Respondent no. 3 is directed to reinstate these petitioners with effect from the date of their termination. There would, however, be no order as to costs.
S.S Sandhawalia, C.J:— I agree.