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Andhra High Court · body

2000 DIGILAW 314 (AP)

Government of A. P. , Co-op. Dept. , v. Nanduri Veerabhadra Rao

2000-04-24

M.S.LIBERHAN, V.V.S.RAO

body2000
M. S. LIBERHAN, C. J. ( 1 ) ) writ Appeal No. 368 of 2000 preferred by the respondents 1 and 2 in W. P. No. 21313 of 1999 arises out of the interlocutory order of the learned single Judge in W. P. M. P. No. 26733 of 1999. ( 2 ) WRIT Petition No. 21313 of 1999 is filed against the order of the President of the primary Agricultural Credit Society, pedagopathi, Khammam District dated 6-4-1999 placing the writ petitioner who is working as Secretary of the said society under suspension pending enquiry into the allegations of misappropriation of the funds of the society. The learned single Judge while admitting the writ petition by the order under appeal granted interim directions to reinstate the petitioner into service in any other society on the ground that the authorities have not complied with the provisions of sub-section (3) of section 59 of the A. P. Co-operative Societies act ( the Act for brevity ). Aggrieved by the same, respondents 1 and 2 have preferred the writ appeal. ( 3 ) WITH the consent of the learned counsel for the parties, the writ petition is also taken up for hearing and being disposed of along with the appeal. The parties will be referred to by their status in the writ petition. ( 4 ) THE petitioner impugned the order of suspension inter alia contending that the special bye-law 12 (3 ). relating to service conditions of Employees of Primary agriculture Credit Societies provides that no employee shall ordinarily be kept under suspension for more than six months and that the suspension should be periodically reviewed and in special circumstances the period of suspension can be extended for further period of two months only. It is also contended that the suspension is not reviewed as envisaged by sub-section (3) of section 59 of the Act. It is also contended that the suspension is not reviewed as envisaged by sub-section (3) of section 59 of the Act. ( 5 ) SECTION 59 of the Act reads as follows: suspension of officer or servant of society:- (1) where in the course of an audit under Section 50 or an inquiry under Section 51 or an inspection under Section 52 or 53, it is brought to the notice of the Registrar that a paid officer or servant of a society has committed or has been otherwise responsible for misappropriation, breach of trust or other offence, in relation to the society, the Registrar, may, if in his opinion there is prima facie evidence against such paid officer or servant and the suspension of such paid officer or servant is necessary in the interests of the society, direct the committee pending the investigation and disposal of the matter, to place or cause to be placed such paid officer or servant under suspension from such date and for such period as may be specified by him, but not retrospectively. (2) On receipt of such direction, the committee shall, notwithstanding any provision to the contrary in the bye- laws, place or cause to be placed the paid officer or servant under suspension forthwith. (3) The Registrar may direct the committee to extend, from time to time, the period of suspension and the paid officer or servant suspended shall not be reinstated except with the previous sanction of the Registrar. " ( 6 ) IT was urged as a necessary corollary that the Registrar having not reviewed the impugned order of suspension, as required under sub-section (3) of Section 59 of the act, the order is liable to be set aside. ( 7 ) THE learned single Judge ordered reinstatement in view of non-compliance of section 59 (3) of the Act and issued directions to reinstate the petitioner into any other society within four weeks from the date of the order. ( 8 ) THE learned Counsel for the respondents contended that the learned single Judge has not correctly appreciated the provisions of Section 59 (3) as well as the suspension order and the Special Bye- law 12 (3 ). The Court can issue no mandamus directing reinstatement. Ordinarily, direction should have been issued to re-consider or to review the order of suspension. The Court can issue no mandamus directing reinstatement. Ordinarily, direction should have been issued to re-consider or to review the order of suspension. ( 9 ) THE learned Counsel appearing for the writ petitioner on the other hand contended that since the petitioner cannot be continued under suspension beyond six months as per Special Bye-law 12 (3) and as the suspension has not been reviewed periodically as required under Special Bye- law 12 (3) read with Section 59 (3) of the Act, the learned single Judge is right in directing the authorities to reinstate the petitioner into service. ( 10 ) WE are not inclined to accede to the contention of the learned Counsel for the petitioner. ( 11 ) IN view of the Bye-law 12 (3) providing that ordinarily an employee shall not be kept under suspension for more than six months and the order of suspension should periodically be reviewed, it is inherent that the order of suspension on the very first instance is to be passed for a specified period. Herein, the order of suspension placing the petitioner under suspension pending enquiry has been passed on 6-4-1999 and no period is specified in the order and the enquiry is still not complete. There is no specific time provided under Section 59 (3) of the Act enabling the Committee of the Society (Governing body of the Society) to review the suspension order passed against the employee pending enquiry. Under Sec. 59 (3) power has been conferred on the Registrar to direct the society to extend the suspension from time to time in the eventuality of the employee not being reinstated into service. Section 59 (3) is also specific that the employee shall not be reinstated into service without the previous sanction of the Registrar. Under Sec. 59 (3) power has been conferred on the Registrar to direct the society to extend the suspension from time to time in the eventuality of the employee not being reinstated into service. Section 59 (3) is also specific that the employee shall not be reinstated into service without the previous sanction of the Registrar. If the contention of the writ petitioner that ordinarily the employee shall not be kept under suspension for more than six months and since the suspension is not periodically reviewed after six months as required under Bye-law 12 (3) read with Section 59 (3) of the Act, the petitioner is entitled to be reinstated into service is accepted, the language of Section 59 (3) which has the overriding effect over any other provision of law under Section 133 of the Act leads to a situation where by way of review or otherwise the society for any reason whatsoever in spite of serious delinquencies committed by the employee or in spite of the employee hampering the enquiry may not extend the period of suspension in spite of the Registrar directing the committee to extent the period of suspension under section 59 (3) and delay the enquiry. If such interpretation is given to Section 59 (3) and the petitioner cannot be kept under suspension for more than six months for not reviewing the suspension periodically by the Committee, there is no meaning in making the statutory provision under section 59 (3) of the Act requiring the registrar to review the suspension and this statutory power conferred on the Registrar would be redundant. Herein, the order of suspension was passed for an indefinite period, which the petitioner never challenged. ( 12 ) SECTION 59 (3) clearly envisages that an employee of the society who has been placed under suspension would not be reinstated except with the previous sanction of the Registrar. Therefore, it is inherent in the Section itself that even after the review of the suspension order passed, the committee of the society is not authorised to reinstate the employee into service without the prior approval of the Registrar. ( 13 ) THUS, in any eventuality, it is not envisaged that the failure of the Committee of the society or Registrar to review the order from time to time will automatically result in reinstatement of the deliqneunt- employee into service. ( 13 ) THUS, in any eventuality, it is not envisaged that the failure of the Committee of the society or Registrar to review the order from time to time will automatically result in reinstatement of the deliqneunt- employee into service. Apart from this, we are of the considered view that in exercise of the jurisdiction under Article 226 of the Constitution no mandamus for reinstatement can be issued. The jurisdiction of the Committee with the right conferred on the Registrar to supervise the same, in the absence of an allegation of mala fide or extraneous consideration, cannot be rendered nugatory by issuing a direction for reinstatement. The authority should be left with the discretion to consider the case and review the order of suspension in the facts and circumstances of each individual case. The learned single Judge has not properly appreciated the purport and intent of Section 59 (3) of the Act. Resultantly, the impugned order is liable to be set aside. It is accordingly set aside and the appeal is accepted. ( 14 ) THE second respondent-Society is directed to review the case of suspension of the petitioner in the light of any facts brought out by the writ petitioner requiring review of the suspension order and after taking appropriate permission from the registrar for reinstatement or otherwise, pass appropriate orders in conformity with the order of the Registrar. The respondent- society is further directed to complete the enquiry within a period of three months from to-day. ( 15 ) THE writ appeal and the writ petition are disposed of accordingly. No costs.