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Allahabad High Court · body

1991 DIGILAW 789 (ALL)

Brahma Prakash Misra v. Farrukhabad Zila Sahkari Bank Ltd

1991-05-14

N.L.GANGULY

body1991
ORDER N.L. Ganguli, J. - This petition has been filed by the petitioner for quashing the order dated 18-8-90/1-9-90 passed by respondent reverting the petitioner from the post of Branch Manager, Zila Sahkari Bank Ltd., Farrukhabad, respondent No. 1. The other prayer is for issuing a writ of mandamus directing the respondents not to give effect to the aforesaid order and not to interfere in any manner with the petitioner's functioning as Branch Manager, Indar Garh, Branch of the aforesaid Bank, respondent in pursuance to the order aforementioned. Counter-affidavit and rejoinder affidavit have been exchanged between the parties, and, with the consent of the parties, the petition is being disposed of finally. 2. For proper appreciation of the controversy involved in the present case the early history of the case would be necessary. The petitioner was initially appointed as a clerk on 5-10-62, and was confirmed on 26-3 64. After about three years of his service, he was temporarily promoted to the post of Branch Manager, w.e.f. 20-12-67 to work in place of one Swaraj Prakash. Therefore, the petitioner was sent to work as temporary Branch Manager of the Bank on 5-2-68. It is stated that the said temporary promotion as a Branch Manager, Quaimganj branch, was in clear vacancy. He continued to function as Branch Manager till 19-7-72. Thereafter, the temporary promotion converted into probationary promotion for a period of 6 months w.e.f. 30-7-71. The period of probation: extended up to 15-7-72. Neither the probation; was approved or disapproved. However, he was reverted by order dated 17-7-72 to the post of clerk. The petitioner was given the promotion by an order dated 17-8-72 to work at Gursaraiganj branch of Bank, as Branch, In charge. 3. One Sri Chhotey Singh Yadav was the Chairman of the Bank. He was interested to support some of his own men. As such by an order dated 16-10-74 he reverted the petitioner, from the post of Branch In charge to the post of clerk. Against the order of reversion from the post of Branch In charge to the post of. clerk, a C.M. Writ Petition No. 7501 of 1974. was filed by the petitioner which was admitted, and an interim stay order was granted by this Court. The interim order passed in the writ: petition was enforced till 29-1-82 when the, writ petition was decided. 4. clerk, a C.M. Writ Petition No. 7501 of 1974. was filed by the petitioner which was admitted, and an interim stay order was granted by this Court. The interim order passed in the writ: petition was enforced till 29-1-82 when the, writ petition was decided. 4. One Joshi Award was given by Industrial Tribunal (3) Allahabad, rationalising the different categories of employees and their wages, working in the District Co-operative Banks throughout the State. After the said award a large number of other employees of the bank and the petitioner had also made a representation through the Administrator of the Bank for the benefits granted by the Joshi Award afore-mentioned. The representation of the petitioner was not decided. Thus, the petitioner filed a conciliation petition before the Conciliation Board, Kanpur which was registered as C.B. Case No. 1808 of 1983. The Conciliation Board refused to entertain the petitioner's claim on the ground that the petitioner had filed a writ petition No. 7501 of 1974. The matter before the Conciliation Officer was pending. The delay in filing Conciliation proceedings had been condoned. The petitioner was advised to file his representation before the Administrator of the Bank to review the earlier order. 5. In the meantime the Administrator of the Bank reviewed the representation of the petitioner and rejected the same. An appeal was filed before the Administrator of the Bank against the said order. The Administrator held that the petitioner had been victimised by the then Chairman, Chhotey Singh Yadav, and allowed the prayer of the petitioner, reinstated him to the post of Branch Manager w.e.f. 16-7-72 with all consequential benefits: There was only one rider that the petitioner was not paid arrears of wages for the past and of the Branch Manager prior to the year 1981. The order of the Administrator is dated 10-7-84. The petitioner is stated to he continuously working as confirmed Branch Manager since then. Although the petitioner had sent a letter to the U.P. Co-operative Institutional Service Board (hereinafter referred to as the Service Board) for approval of the petitioner's promotion after the order passed on 18-7-84. No order of approval or disapproval was received from the aforesaid Services Board. 6. Although the petitioner had sent a letter to the U.P. Co-operative Institutional Service Board (hereinafter referred to as the Service Board) for approval of the petitioner's promotion after the order passed on 18-7-84. No order of approval or disapproval was received from the aforesaid Services Board. 6. The petitioner received a letter dated 7-9-90 passed by the Administrator which is impugned in the present writ petition by which he has been reverted to the post of clerk from the post of Branch Manager w.e.f. 16-10-74. The petitioner challenged the said order of reversion on the grounds that firstly, there was no resolution the Committee of Management to pass an order of reversion dated 18-8-90/1-9-90. Secondly, the order impugned aforesaid was passed without affording any opportunity to the petitioner. Thirdly, that the order of reversion from higher post to the lower post of clerk amounts to reversion in view of the Regulation 87 of the U.P. Employees Services Regulation 1975 and it was bad in law for want of concurrence by the Service Board. Fourthly, it was pointed out that the petitioner was rightly promoted w.e.f. 16-7-72 which is prior to the Constitution of the Board itself, which came into force on 25-7-72. Thus, there was no necessity or possibility of concurrence for approval to promotion to the post of Branch Manager. Fifthly, the reversion from the higher post to the lower post after a lapse of 6 years without any fresh complaint or disciplinary proceedings is bad in law and arbitrary. Lastly, it was stated that the order impugned reverting the petitioner to the lower post was passed on account of bias of Shri Chhotey Singh Yadav, who was previously the Chairman of the Bank, and presently a Member of Parliament, and the present Administrator has passed the impugned order under his influence. The order impugned was passed in violation of the rule of natural justice. 7. Counter and rejoinder affidavits have been exchanged between the parties and the petition was argued by the learned counsel for the parties for final hearing. The case is being thus heard finally without passing any formal order of admission of the writ petition. The detailed counter-affidavit has been filed on behalf of the respondents by which the allegations in the writ petition have been controverted. It has been stated that the petitioner was not given any regular promotion in 1967. The case is being thus heard finally without passing any formal order of admission of the writ petition. The detailed counter-affidavit has been filed on behalf of the respondents by which the allegations in the writ petition have been controverted. It has been stated that the petitioner was not given any regular promotion in 1967. He was promoted to officiate temporarily. He was never posted is the Branch Manager on probation. The counter-affidavit states that the petitioner was reverted from the officiating charge of Branch Manager on account of inefficiency. It was stated that the petitioner's officiating charge as Branch Manager was never approved by the appointment Committee. The Managing Director had cancelled the said promotion. The petitioner continue to work in the substantive capacity of clerk w.e.f. 25-10-68, in the pay scale of a clerk. The probation period of petitioner was extended, but the petitioner could not improve his performance as such, he was not appointed as the Branch Manager. The Joshi Award referred to above by the petitioner was stated as to be not applicable to the petitioner as the respondent bank was not a party in the proceedings of the Joshi Award. The respondent further pointed out that the order dated 17-8-72 by the petitioner was given promotion in a stop gap arrangement and the reversion of the petitioner, by order dated 16-10-1974 was legally correct and was not passed by way of punishment. It was pointed out that the order was passed in pursuance of the provision of the Regulation 5 (ii) (b) of the Regulations aforementioned. The said order was also challenged by the petitioner by C.M. Writ Petition No. 7501 of 1974 before the High Court. The High Court also was pleaded to dismiss the said writ petition of the petitioner by order dated 29-1-1982. 8. The respondent stated that the Joshi Award was not applicable to the respondent Bank. The Administrator/District Magistrate had dismissed the petitioner's appeal by order dated 26-5-1983. It was pointed out that there was change in the Administrator of the Bank and one Sri Ram Sewak Misra had taken over as Administrator of the respondent Bank. It is stated that the order dated 9-7-1984 passed by the Administrator of the bank was illegal and void No benefit could accrue to the petitioner on the basis of the order dated 9-7-1984. It is stated that the order dated 9-7-1984 passed by the Administrator of the bank was illegal and void No benefit could accrue to the petitioner on the basis of the order dated 9-7-1984. The respondent denied knowledge of the conciliation proceedings and order passed thereon. The respondent pleaded that representation dated 28-5-1984 for reconsideration of the appeal of the petitioner which was decided by Ram Sewak Misra, the then Administrator of the Bank, was illegal and void. The question for consideration before this court is whether the petitioner was legally and correctly reverted to the post of clerk from higher post of Branch Manager in accordance with law. 9. The main grievance of the petitioner is that before passing the impugned order no opportunity of hearing was given to him. The order, thus, was passed in violation of rule of natural justice. Admittedly, no disciplinary proceedings were taken against the petitioner, and no opportunity of hearing was afforded to the petitioner before passing the impugned order of reversion. It cannot be disputed that by order of the Administrator, the petitioner continued to hold the post of Branch Manager w.e.f. 1972 by the order dated 9-7-1984, and consequential order dated 10-7-1984 and 18-7-1984 of the then Secretary. The order passed by the Administrator of the Bank was not reversed or upset for more than six years by the respondents. The order impugned suddenly annulled the order of the Administrator dated 9-7-1984. The order annulling the Administrator's order dated 9- 7-1984 was passed in direct violation of rule of natural justice. 10. The objection of the respondents is that the petitioner had an alternative remedy to approach the Registrar, Co-operative Societies, U. P. by way of appeal and, thus, the present writ petition was liable to be rejected on the ground of alternative remedy. It was pointed out that initial promotion alleged to have been given to the petitioner was itself illegal and void. The submission was that the promotion to the petitioner, although made before the aforesaid Services Board was constituted would not render the promotion valid. It was pointed out that before the Constitution of the Services Board aforesaid by General Administrative Instructions, the Committee of Management of the Co-operative Societies were directed not to make any appointment till the Board was constituted. It was pointed out that before the Constitution of the Services Board aforesaid by General Administrative Instructions, the Committee of Management of the Co-operative Societies were directed not to make any appointment till the Board was constituted. The appointment/promotion to the petitioner was given only couple of days prior to the constitution of the Services Board, despite the prohibitive instructions issued to the managing committee. The respondents cited a Supreme Court case, reported in 1980 UPLBEC page 202 : Virendra Pal Singh v. District Asstt. Registrar, Co-operative Societies, Etah. where it was held that before the constitution of the U. P. Co-operative Institutional Services Board, the Committee of Management of a Co-operative Society which had powers to make appointment, recruitment etc. were informed by the administrative instructions not to make appointments. and if in spite of such instructions, the Committee of Management chose to make appointments usurping the powers of the aforesaid Services Board, it would be screened by the Services Board. The authority cited by the learned counsel for the respondent do not support their case. It does not say that the screening of the order of recruitment etc. made without the concurrence of the Services Board be upset without notice. This ruling also suggests that any such appointment made by the Committee of Management were not to be given an opportunity of hearing before the screening. The ruling cited does not say that the recruitment etc. be set aside or cancelled without opportunity. The respondent also cited another case reported in 1982 UPLBEC page 358 : Deo Prabhakar Dubey v. District Co-operative Bank Ltd., Basti, in which it has been held that the promotion made without complying provisions of Section 56)(b) of the aforesaid Regulation 1975 without approval of the Services Board could be set aside and cancelled without giving an opportunity of hearing t o the person concerned against whom the action was proposed to be taken. The basic concept of rule of natural justice cannot be allowed to be violated by merely saying that initial promotion itself was bad in law for want of concurrence or approval of the Services Board. It may be that the earlier orders impugned were passed against the petitioner and he had failed to get any favourable order till the order dated 9-7-1984 passed by the Administrator in his favour. It may be that the earlier orders impugned were passed against the petitioner and he had failed to get any favourable order till the order dated 9-7-1984 passed by the Administrator in his favour. It cannot be said that the order dated 9-7-1984 passed by the Administrator was without authority of law. He was legally competent and had authority as the Administrator to do so. 11. So far as the objection of the respondent about the maintainability of the writ petition on the ground of alternative remedy in concerned, it is well settled that the appeal is not always an absolute bar for entertaining writ petition. In view of the facts and circumstances of the case, it is clear that the petitioner, who worked as Branch Manger for a pretty long time and at least after an order for more than 6 years as stated earlier, has been reverted back without any notice or opportunity of hearing. This reversion of the petitioner is clearly in violation of rule of natural justice. A person cannot be shunted out by the departmental authorities in seeking redress. I consider that the present writ petition may be decided on the sole question of breach of rule of natural justice. It would be futile and improper to reject the writ petition on the mere ground of alternative remedy. 12. After hearing the learned counsel for the parties, I am of the view that the impugned order reverting the petitioner from the post of Branch Manager to the post of clerk after more than 6 years without giving an opportunity of hearing or notice cannot be allowed to stand. The order impugned order dated 1-9-1990 (Annexure 14 to the writ petition) passed by the Administrator of the respondent-Bank is quashed. The petition is allowed. The petitioner shall be entitled to be reinstated to the post he was holding when the order impugned was passed and he shall be entitled to receive all emoluments for the post held by him according to law.