RAMPAL SINGH TYAGI v. UTTER PRADESH CO-OP. FEDERATION LTD. , LUCKNOW — 1998 DIGILAW 976 (ALL)

PALOK BASU, B. K. SHARMA, J. ( 1 ) SHORT but interesting question which arises in this writ petition is an to whether the power which has been conferred on Managing Director by Amending Act, i. e. U. P. Act. No. 1 of 1997, Promulgated with effect from 16. 4. 1997 permitting that the Managing Director of a society shall be in-charge only of current duties of the Committee of Management would mean that the Managing Director can assume the powers as conferred by Regulation No. 86 of U. P. Co-operative Societies Employees Service Regulations, 1975 or U. P. Co-operative Federation Limited Karmachari Seva Niyamawali. 1980. whichever may be held applicable to the facts of the present case. ( 2 ) BEFORE proceeding further with the facts of the case it may be pointed out that it is in the year 1976 that the State of U. P. come out with the amending Act No. 12 of 1976 which permitted that appointment of a Managing director, instead of Secretary, of Apex Societies. It is undisputed that U. P. Co-operative Federation Ltd. is an Apex Society. The powers exercisable by a managing Director when the Committee of Management may be in existence is governed by sub-section (4) of Section 31-A of U. P. Co-operative Societies act, here-in-after referred to as the Act. It may be interesting to note here that sub-section (2) thereof provides that "the Managing Director shall be ex officio member of the Committee of Management. " The petitioner, Ram Pal Singh tyagi, has described himself to be the District Manager. U. P. Co-operative federation Limited, Merrut. This has not been disputed. . It is said that on account of dispatching truck load of sugar later than the time respected an adverse entry was awarded to the petitioner on 25,7. 1998 by the Managing director of the Federation. On 29. 7. 1998 the Managing Director again passed the order impugned in this writ petition, by which the petitioner was suspended on the ground that disciplinary proceedings were contemplated against him. The U. P. Co-operative federation and the Managing Director by name have been impleaded as opposite parties 1 and 2. ( 3 ) WHEN the writ petition was filed on 6. 8. The U. P. Co-operative federation and the Managing Director by name have been impleaded as opposite parties 1 and 2. ( 3 ) WHEN the writ petition was filed on 6. 8. 1998 the respondents appeared to oppose it and, therefore, time was allowed to file counter affidavit which has been filed to which rejoinder affidavit has also been filed. Both the sides have filed written arguments also. ( 4 ) SRI A. Kumar, learned counsel for the petitioner has been heard at length in support of this writ petition and likewise Sri Murlidhar. Senior Advocate, assisted by Sri Pradeep Chandra has been heard for the respondents. ( 5 ) BEFORE coming to the actual discussion of the question posed above. it may be pointed out that the petitioner had his own story to advance concerning delay in dispatch of sugar truck load to the destination. According to the petitioner since movement of Kawarias was so thick and strong on the road towards Meerut to and fro, the movement of truck was impossible. He has relied upon the fact that the information sent to the petitioner was that a truck load of wheat was set at fire by Kawarias on the highway. which information was conveyed to him on 18. 7. 1998. The recommendation of the district Magistrate was that the petitioner had succeeded in attaining the wheat procurement target and therefore, appreciation was to be awarded to the petitioner which was followed by a Fax massage dated 20. 7. 1998 informing the District Magistrate concerned that it was not possible to reach the sugar till 22. 7,1998 and supply would commence on 23. 7. 1998. ( 6 ) THE impugned suspension order on the other hand indicates that delayed supply of sugar created difficulty amongst the consumers. inasmuch as reputation and honour of the Federation was thereby lowered in the estimation of the general public.-That was the reason why the Managing director took upon him to award adverse entry on 28. 8. 1998. A true copy of the said adverse entry has been filed as Annexure-6 to the writ petition. The adverse entry indicates that because of the delay in dispatching the truck load i of sugar by the petitioner. his conduct is held re-apprehensible lor which adverse entry is being made. ( 7 ) IN the writ petition challenge has been extended to order dated 29. 7. The adverse entry indicates that because of the delay in dispatching the truck load i of sugar by the petitioner. his conduct is held re-apprehensible lor which adverse entry is being made. ( 7 ) IN the writ petition challenge has been extended to order dated 29. 7. 1998 by which the petitioner has been suspended and it has been. therefore. prayed as per prayer No. 2 that the respondents be restrained from interfering in any manner with the petitioners functioning as District Manager, pcf. Meerut on the basis of the aforesaid order. The Prayer No. 1 is confined to quashing of the aforesaid order dated 29. 7. 1998. ( 8 ) SRI A, Kumar, learned counsel for the petitioner, has contended that the distinction made by the Legislature between the Committee of management and its Managing Director should be maintained throughout. The provisions contained in the Act were examined thoroughly and whatever powers of the Committee of Management have been conferred on the Managing director specific Provisions exist. In this context reference should be made to the provisions contained in Section 31-A of the Act which has been cited above. Even when the Committee of Management is in existence the power that is conferred on the Managing Director by clause (v) of sub-section (4) of Section 31-A is "to be responsible for the general conduct supervision and management of the day to day business and affairs of the society. " ( 9 ) SECTION 29 of the Ad exists in Chapter IV which deals with the management of the society. Further, Section 29 provides that the management of every Co-operative Society shall vest in a Committee of Management constituted in accordance with this Act or rule made thereunder. U. P. Co-operative Societies Employers Service Regulation, 1975 defines appointing authority in Regulation 2 (iii) which reads as under:"appointing authority means committee of Management or any other authority which is empowered under these regulations or the bye-laws of the society concerned to make appointment. " ( 10 ) LIKE wise, Regulation 2 (Ga) of U. P. Co-operative Federation Limited karmchari Seva Niyamawali 1980 provides that: translation by the Court:"appointing authority means Committee of Management or any other authority which is empowered under these regulations or the bye-laws of the society concerned to make appointment. " ( 10 ) LIKE wise, Regulation 2 (Ga) of U. P. Co-operative Federation Limited karmchari Seva Niyamawali 1980 provides that: translation by the Court:"appointing authority means Committee of Management or any other authority which is empowered under these regulations or the bye-laws of the society concerned to make appointment. " ( 11 ) AS to the powers which have been conferred on the Committed of management with regard to penalties, disciplinary proceedings and appeals chapter VII of U. P. Co-operative Societies Employees Service Regulations. 1975 delineate them through Regulations 84 arid 85. Regulation 84 aforesaid provides that:"penalties. (i) Without prejudice to the provisions contained in any other regulation. an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under section 103 of the Act or docs anything prohibited by these regulations shall be liable to be punished by any one of the following penalties, (a) censure, (b) withholding of increment, (c) fine on an employee of Category IV (peon, chaukidar Etc.), (d) recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the co-operative society by the employees conduct, (e) reduction in rank or grade held substantively by the employee, (f) removal from service, or (g) dismissal from service. "regulation 85 (vi) provides that: "an employee other than one referred to in clause (v) may be placed under suspension in the following circumstances by the appointing authority or any other officer authorised for the purposes: (under-lining by the Court): (a) Not quoted (b) "" (c ). . . . . . ( 12 ) THE U. P. Co-operative Federation Limited Krmchari Seva niyamawali-1980 has Chapter-7 which provides for, i. e. punishment. disciplinary proceedings and appeal. Regulation 83 of the said Niyamawa provides as under: ( 13 ) DISCIPLINARY proceedings, Le.-3^911^^* *|4=ll) is dealt with under "suspension: Any employee under following circumstances can be suspended by appointed authority or by an officer authorised for this purpose. " ( 14 ) WHILE Sri. A. Kumar argued that it is the employees Regulation which is attracted to the facts of the case, Sri Murlidhar, leaned Senior Counsel appearing for the opposite parties, insisted that it is the Federation Employees regulation which will hold the field. " ( 14 ) WHILE Sri. A. Kumar argued that it is the employees Regulation which is attracted to the facts of the case, Sri Murlidhar, leaned Senior Counsel appearing for the opposite parties, insisted that it is the Federation Employees regulation which will hold the field. However, since the writ petition deals with only order of suspension such controversies need not detain the court because in both the aforesaid Regulations provisions for suspension are identical in terms. The fact that censure entry has been awarded which has not been made subject- matter of challenge in this writ petition should also not detain this court any longer with the aforesaid arguments, Le. applicability of either of the two Regulations because the court is proceeding on the basis of the argument of the learned counsel for the respondents that it is the provision of Federation regulations which will govern the petitioners case. ( 15 ) SUB-REGULATION (5) of Regulation 85 read with 2 (Ga) as quoted above, leaves no manner of doubt that it is the Committee of Management alone or the officer specially empowered in this behalf which is authorised to pass order of suspension. ( 16 ) IN this view of the matter, the primary question posed now opens for discussion. ( 17 ) THE State of Uttar Pradesh has come out with aforesaid Amending act. i. e. , U. P. Act No. 1 of 1997 which by Section 2 thereof has added sub-section (5) to Section 29 of the Act. For ready reference the entire sub-section (5) has to be quoted as under:" (A) Where for any reason whatsoever the election of the elected members of the Committee of Management has not taken place or could not take place before the expiry of the term of elected members. the committee of Management shall. notwithstanding anything to the contrary in this Act or the rules, or the bye-laws of the society, cease to exist on the expiry of such term. (b) On or as soon as may be after the expiry of such term. the registrar shall appoint art Administrator or a Committee of Administrators (hereinafter, in this section, referred to as the Committee) for the management of the affairs of the society until the reconstitution of the committee of Management in accordance with the provisions of the Act. (b) On or as soon as may be after the expiry of such term. the registrar shall appoint art Administrator or a Committee of Administrators (hereinafter, in this section, referred to as the Committee) for the management of the affairs of the society until the reconstitution of the committee of Management in accordance with the provisions of the Act. the rules, and the bye-laws of the Society and the Registrar shall have the power to change the Administrator or, as the case may be, any member of the Committees or to appoint a committee in place of an administrator or vice verse from time to time. (c) Where a Committee is appointed under clause (b) it shall consist of a Chairman and such other members not exceeding eight as may be nominated by the Registrar, out of which at least two shall be the government servants. (d) The procedure for summoning and holding of meetings of the committee, the time and place of holding such meeting, the conduct of business of such meeting and the number of members necessary to form quorum thereof shall. be such as may be prescribed. (e) So long as no administration or as the case may be, the committee is appointed under clause (b), the Secretary or the Managing director, as the case may be, of the Society shall be in-charge only of the current duties of the Committee of Management explanation Where results of the election of members of the committee of Management have not been or could not be declared, for any reason whatsoever, before the expiry of the term of the elected members of the out going Committee of Management, it shall be deemed that the election of the elected members of the Committed of Management has not taken place within the meaning of this sub-section. " ( 18 ) THE entire argument of both the sides centers round the meaning which may be put to the words in clause (e) of sub-section 5 of Section 29. " ( 18 ) THE entire argument of both the sides centers round the meaning which may be put to the words in clause (e) of sub-section 5 of Section 29. It is admitted to the parties that when the impugned order was passed there was neither any Committee of Management in existence nor was there any administrator and it is only the Managing Director who was looking-after the federation, which, as noted above, is an Apex society Clause (e) lays down that the Managing Director of the Society shall be in-charge only of the current duties of the Committee of Management. The words which have been specifically used are of paramount importance in order to evaluate the respective arguments. They are the words, only and current duties. ( 19 ) THE use of the ward, only is indicative of restricting the powers of the Managing Director to the current duties. It should not lie in the mouth of the respondents to clamorous that the Managing Director should be in-charge of all the powers and duties of the Committee of Management itself, for two reasons. First, because that is not what Section 31-A provides. Even when a committee of Management is in existence the Managing Director can go ahead with the day to day function as has been noted above in sub-section (4) of section 31-A of the Act. Second. initiating disciplinary proceedings and suspending a District Manger is very serious matter requiring deep application of mind by the Committee of Management whereas the Managing Director is empowered to do only current duties on behalf of the Committee of management. In fact passing of such suspension order indicates exercise of wholesome power which is something much above current duties. Even otherwise. empowering Managing Director to do only current duties being an exofficio member of erstwhile Committee of Management leave him empowered with the current duties equivalent to day today functions as envisaged by Section 31 -A of the Act. Therefore, the aforesaid provisions contained in clause (e) would not permit the Managing Director to pass such orders as are specifically conferred on Committee of Management. It is not disputed that the petitioner is the District Manger working under the Federation and his appointing authority is Committee. of Management. ( 20 ) IT has already been noted above that the U. P Co-operative Federation Limited Karmchari Seva Niyamawali. It is not disputed that the petitioner is the District Manger working under the Federation and his appointing authority is Committee. of Management. ( 20 ) IT has already been noted above that the U. P Co-operative Federation Limited Karmchari Seva Niyamawali. 1980 has restricted the use of power of suspension on the Committed of Management by Regulation 84 (5) noted above. The question of exercising such power of Committee of management by any delegated authority did not arise because there was no committee of Management at all when the impugned order was passed nor was there a Administrator. ( 21 ) IN view of the aforesaid discussion, there is no doubt in the mind of the court that the Managing Director has exceeded his jurisdiction in passing the impugned suspension order and institution disciplinary proceedings against the petitioner. ( 22 ) IT may be pointed out here that Sri Murlidhar wanted to interpret the words, current duties oj the Committee of Management as to institute disciplinary proceedings and power of suspension on the supposed justification that there may be a grave situation and necessity to pass suspension order or to institute disciplinary proceedings may appear imperative and, therefore. to hold that Managing Director is not empowered to pass such an order would be giving a long rope to a dishonest employee. Equally forceful was the reply of the petitioners side. It is contended that life term of the Managing Director is envisaged by sub-section (5) of Section 29 of the Act brought about through a legislative amendment. i. e. by U. P. Act No. 1 of 1977, cannot be permitted to extend for a very long period and must be interpreted to be restricted to as short a period as possible because the Federation itself is a conglomeration of various Co-operative Societies and if an individual officer is thus permitted to run the Federation for a very long term it shall not be in the fitness of things. In that case the very purpose of establishing an Apex Co-operative Society to be run by a Committee of Management, as defined in the Act, may stand defeated. In that case the very purpose of establishing an Apex Co-operative Society to be run by a Committee of Management, as defined in the Act, may stand defeated. ( 23 ) IN view of the reasons stated above, there is enough force in the petitioners contention that the Managing Director under the present provisions in the Act could not become the Committee of Management, t. e. The appointing authority and, therefore, could not pass the impugned suspension order ( 24 ) IN view of what has been stated above, the writ petition succeeds and is allowed, and the impugned order dated 29. 7. 1998 passed by the Managing director, U. P. Co-operative Federation, Lucknow placing the petitioner under suspension is hereby quashed. Parties will bear their own costs. Petition Allowed. .