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Allahabad High Court · body

1992 DIGILAW 134 (ALL)

Sheikh Abdul Kalam Azad v. B. M. Bohra Managing Director

1992-01-29

S.R.SINGH

body1992
JUDGMENT : S.R. Singh, J. By means of the present petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the order dated 18-3-1991 (Annexure-12 to the writ petition) whereby the petitioner's services were terminated with immediate effect by way of punishment. 2. The matrix of the facts in short is that the petitioner was appointed as Secretary/General Manager on a consolidated salary of Rs. 3,600/- plus free unfurnished accommodation or the house rent allowance as per the rules, with effect from 16-6-1987 forenoon, under U.P. Co-operative Spinning Mills Federation Ltd., Kanpur fin short the federation') on terms and conditions specified in the appointment order dated 30-6-1987. A charge-sheet dated 8-1-1991 (Annexure S-A-5 to the Suppl. Affidavit) was issued to the petitioner containing as many as eight charges against him as mentioned in the charge-sheet aforementioned. The service of the charge-sheet is, however, disputed by the petitioner. According to the respondents, an enquiry was held ex-parte inasmuch as the petitioner failed to submit any explanation to the charges contained in the charge sheet against the petitioner and the Enquiry Officer submitted his report, a copy of which is annexed as Annexure SA-6 to the Suppl. Affidavit. The services of the petitioner were terminated by means of the impugned order aforesaid on the basis of the said enquiry report. 3. I have heard Sri Ashok Khare, learned counsel appearing for the petitioner and Sri Pradeep Kumar, learned counsel appearing for the respondents. 4. Learned counsel for the petitioner submitted before me that the services of the petitioner were governed by the U.P. Cooperative Societies Employees Service Regulation, 1975 framed by the Uttar Pradesh Co-operative Institutional Services Board under Section 122 of the U.P Co-operative Societies Act, 1965 (in short the 'Act') and that the order of termination has been passed in breach of Regulation No. 87 which requires that an order imposing penalty under Sub-clauses (e) to (g) of Clause (i) of the Regulation No. 84, shall not be passed except with the prior concurrence of the Board and that prior concurrence of the Board having not been obtained in the instant case, the impugned order of termination being in the nature of removal/dismissal from service within the meaning of Clauses (f) and (g) of Regulation No. 84, is void. He has also contended that the order impugned in the writ petition was passed in violation of the principles of natural justice, inasmuch as according to the learned counsel, the petitioner was not afforded reasonable opportunity at the enquiry stage, nor was he given show-cause notice contemplated by Regulation No. 84 (iii) of the regulations. The learned counsel for the petitioner further contended that the enquiry report submitted by the Enquiry Officer was perverse inasmuch as it was based on no valid material and was only a reproduction of the language used in the charge-sheet and, therefore, according to the learned counsel, the enquiry report could not legitimately have been made the basis for termination of the petitioner's services. 5. The learned counsel for the respondents refuted the above submissions of the learned counsel for the petitioner and contended before me that the Regulations of 1975 were not applicable to the petitioner. He also contended that the enquiry was conducted in tune with the principles of natural justice, inasmuch as, according to the learned counsel, sufficient and ample opportunity was given to the petitioner but he failed to avail of the opportunities at the enquiry stage. As regards the non-supply of the enquiry report, the learned counsel for the respondents contended before me that in view of the Regulation No. 85 (i) (c), the Punishing Authority was not required to give any show-cause notice as contemplated in Regulation 85 (iii) inasmuch as, the petitioner had not submitted any explanation to the charge-sheet in the instant case. 6. The learned counsel for the respondents also raised a preliminary objection as to the maintainability of the writ petition on the ground that the petitioner has an alternative remedy under Section 128 of the U.P. Co-operative Societies Act, 1965 by way of representation to the Registrar for annulling the resolution of the Committee of Management or the order impugned in the petition terminating the services of the petitioner. The learned counsel for the respondents further submitted that the petitioner did not come with clean hands inasmuch as he has made false allegations of mala fides against Respondent No. 1 and, therefore, according to the learned counsel, even if the order is held to be vitiated by any error of law, the petitioner is not entitled to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. 7. 7. The last contention of the learned counsel for the respondent is that since the petitioner was not appointed with prior approval of the Institutional Service Board, the prior concurrence of the Board was not necessary for purposes of terminating his services. 8. The first question that comes up for consideration is whether the services of the petitioner are governed by the provisions of U.P. Co-operative Societies Employees' Services Regulation 1975. This question fell for consideration before me in Sri Pukh Raj Mantri v. U.P. Co-operative Spinning Mills Federation Ltd. WP No. 12226 of 1983, decided on 13-1-1992. In that case, I have dealt with the question as below : 'It is not disputed before me that by means of Notification No. 366-C/XII C-3-36-1971 published in U.P. Gazette Extra-ordinary dated 4-3-1972 issued under the provisions of Sub-section (1) of Section 122 of the U.P Co-operative Societies Act. 1965 read with Rule 389-A of the U.P. Co-operative Societies Kule, 1968, the Governor was pleased to constitute an authority known as the U.P. Co-operative Institutional Service Board for the recruitment, training and disciplinary control of the employees of certain Apex level societies including Co-operative Textile Mills, but by means of a subsequent Notification No. 2752/XII-C-2/72-1978, dated Lucknow October 16, 1981 issued under the same provision of law; the aforesaid Notification dated 4-3-1972 was amended by omitting the words Co-operative Textile Mills". Consequently, the provisions of U.P. Cooperative Societies Employees' Service Regulation, 1975 framed by the U.P. Co-operative Institutional Service Board were not applicable to the petitioner, though the aforesaid regulations have since been adopted by the Federation vide resolution No. 6 passed by the Committee of Management of the Federation in its meeting held on 14-3-1991." 9. It is thus evident that on the basis of the resolution adopted by the Federation in its meeting held on 14-3-1991, the provisions of regulation, 1975 were made applicable to the employee of the Federation. That being so, prior concurrence of the Institutional Service Board required by Regulation 87, of the Regulations, was a must. Admittedly, prior concurrence was not obtained in the instant case and the penalty being one or the penalties (.numerated in sub-clauses (e) to (g) of Clause (1) of regulation 84, the impugned order becomes a nullity. That being so, prior concurrence of the Institutional Service Board required by Regulation 87, of the Regulations, was a must. Admittedly, prior concurrence was not obtained in the instant case and the penalty being one or the penalties (.numerated in sub-clauses (e) to (g) of Clause (1) of regulation 84, the impugned order becomes a nullity. The order impugned in the present petition is vitiated not only due to the reason aforesaid, but also due to the reasons of non-compliance of Regulation 84 (iii) of the regulations which embodies a rule of natural justice. The learned counsel for the respondents has not disputed before me that show cause notice contemplated by Regulation 84 (sic) (iii) was not issued and the petitioner was not furnished with a copy of the enquiry report with a view to enable him to have his say in the matter before imposing the penalty of termination of his services by way of punishment. 10. In Union of India v. Mohd Ramzan Khan, (1991) (1) SCC 5881 the Hon. Supreme Court has held that supply of a copy of the enquiry report along with a recommendation, if any in the matter of proposed punishment to be inflicted, would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. On the admitted facts, therefore, the order impugned in the petition was passed in breach of principles of natural justice even if it be held that the petitioner was given opportunity at the enquiry stage and he did not avail of the same. An opportunity before inflicting punishment was a must in view of the provisions contained in Regulation 84 (iii) of the regulations The requirement of issuing a show cause notice shall not be whittled down by virtue of the provisions contained in Regulation 85 (1) (c) of the regulations as contended by the learned counsel for the respondents. The provision contained in sub-clause (c) of Clause (1) of Regulation 85, does not, in my opinion, dispense with the obligation of fastened upon the Punishing Authority by virtue of clause (iii) of Regulation 84. It is evident that clause (iii) of Regulation 84 bars imposition of any punishment except the punishment of censure unless a show cause notice is' given to the employee to have his say in the matter. It is evident that clause (iii) of Regulation 84 bars imposition of any punishment except the punishment of censure unless a show cause notice is' given to the employee to have his say in the matter. The show cause notice contemplated by Clause (iii) of Regulation 84 is a must irrespective of the fact whether the concerned employee has submitted his reply to the charge-sheet or not Regulation 85 deals with the procedure to be followed by the Enquiry Officer and it also provides that the Enquiry Officer shall follow the procedure indicated therein with due observance of the principles of natural justice. In a case where the delinquent employee has not submitted his explanation to the charge-sheet or where the explanation submitted is found to be unsatisfactory, the Punishing Authority is no doubt empowered to award appropriate punishment considered necessary but before awarding such punishment, the Punishing Authority has to give the delinquent employee a show cause notice as contemplated by clause (iii) of Regulation 84. The principles of natural justice may on may not have been breached by the Enquiry Officer within the meaning of Regulation 85, but the breach of the principles by the Punishing Authority is established on the admitted fact inasmuch as the mandatory provisions of clause (iii) of Regulation 84 were admittedly not complied with. It is taken as settled principle of law that an order passed in breach of the principles of natural justice, is void. It is also well settled that alternative remedy is not an absolute bar under Article 226 of the Constitution of India. Judicial decisions recognise certain well established exceptions to the rule of alternative remedy. One of these exceptions is that if an order has been passed in breach of principles of natural justice, existence of alternative remedy is not a bar to a writ petition. In support of this proposition, one may refer to a Division Bench case of this Court in Nathi Lal Ram Sahai Mal v. Vice-Chancellor, Meerut University, 1981 (UPLBEC) 161. which has relied upon Supreme Court decision in State of Uttar Pradesh v. Mohd. Noor and M/s Babu Ram Prakash Chandra Maheshwari v. Antarim Zila Parishad Muzaffarnagar, AIR 1969 (SC) p. 656. which has relied upon Supreme Court decision in State of Uttar Pradesh v. Mohd. Noor and M/s Babu Ram Prakash Chandra Maheshwari v. Antarim Zila Parishad Muzaffarnagar, AIR 1969 (SC) p. 656. In support of his submission that the alternative remedy is no bar to the writ petition in the instant case, the learned counsel for the petitioner has also placed reliance upon U.P. Bank Employees Union v. District Co-operative Bank Ltd. (1991) (2) UPLBEC 1267. A.B. Venkateshwaran v. R.S. Wadhwani AIR 1961 (SC) 1506 , and G.M. and Manu Co. Ltd. v. U. Muni Council 1970 (1) SCC 582 . In A.B. Venkateshwaran (supra) it has been held that existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution unless-(i) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (ii) where the order prejudicial to the petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non-est. In other cases referred to supra, the same principle has been reiterated. The decisions in Civil Misc. Writ Petition No. 1984 of 1982 Sri A.D. Tandon v. The Registrar, Co-operative Societies U.P. Lucknow and others, decided on 6th of May 1985, WP No. 19175 of 1988. Kamla Shanker Pandey v. U.P. Sahkari Katai Mills Fatehpur and others, WP No. 2076 of 1989 decided on 7-3-1989 and Sri V.K.S. Chauhan v. U.P. Co-operative Spinning Mills Federation Kanpur and others, decided on 10-3-1989 relied upon by the learned counsel for the respondents are, therefore, of no avail to him. The Full Bench decision in Chanderma, Singh's case does not alter the situation. 11. The Full Bench decision in Chanderma, Singh's case does not alter the situation. 11. In this connection, the learned counsel for the petitioner has also submitted that Section 28 applies to a case where cancellation of an order passed by an Officer of a Co-operative Society or annulment of any resolution passed by a Committee of Management or General body of any Co-operative Society is sought on the ground that the order or resolution, as the case may be, is not covered by the objects of the society or is in contravention of the provisions of the Act, the rules or the bye-laws of the society and not where the cancellation or the annulment as the case may be is sought on the ground of breach of any regulations made under the Act. I do not consider it necessary to express my views on this submission for the reason that I have already held that the order impugned is void, having been passed in breach of mandatory, provisions contained in Regulation No. 84 (iii) and Regulation No. 87. 12. As to the question whether the petitioner was afforded an opportunity of having his say at the enquiry stage, the learned counsel for the petitioner has urged that the charge-sheet sent by registered post, was on admitted facts, returned undelivered. He has placed reliance upon Sukumar v. Naresh Chand AIR 1968 Cal. p. 49. This question also need not be dealt upon in detail, for I have already held that the order impugned in the petition is void for the reason of violation of the provisions contained in Regulation No. 94 (iii) and Regulation No. 87 of the regulations and since the order has to be quashed on that ground I consider it expedient in the ends of justice that even if the petitioner did not avail of the opportunity at the enquiry stage, he may be afforded one more chance to give his reply to the charge-sheet 13. The only other contention that remains to be considered in the instant case is whether the enquiry report was perverse, being verbatim repetitive of the language used in the charge-sheet. The only other contention that remains to be considered in the instant case is whether the enquiry report was perverse, being verbatim repetitive of the language used in the charge-sheet. In this connection, the learned counsel for the petitioner has placed reliance upon Anil Kumar v. Presiding Officer, AIR 1985 (SC) 1121 and contended before me that on order passed on a perverse enquiry report, not properly reasoned, is vitiated by error of law. The submission made by the learned counsel for the petitioner carries substance, as is evident from a comparative reading of enquiry report and the charge-sheet. 14. In the conspectus of the above discussions, the petition succeeds and is allowed. The impugned order dated 18/19th March, 1991 (Annexure-12 to the writ petition) is quashed, but on the facts and circumstances of the case, the petitioner shall be deemed to be under suspension, entitled to such subsistence allowance as may be payable to him in accordance with law. The arrears of the subsistence allowance shall be paid to the petitioner within a period of one month from the date of presentation of a certified copy of this order before the appropriate authority. The petitioner shall, however, submit his reply to the Enquiry Officer within two months from today. The enquiry shall be concluded within another four months in accordance with law and in the light of the observations made (supra).