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Rajasthan High Court · body

2001 DIGILAW 266 (RAJ)

Govind Ram v. The Addl. Registrar (First), Co

2001-02-15

J.C.VERMA

body2001
JUDGMENT 1. - The petitioner was an employee of the respondent No. 3 Khairthal Kraya Vikraya Sahakari Samiti Limited (herein-after referred to as 'the Samiti'), wherein he was working since 1966 initially as Clerk. He was appointed as Cashier in the year 1973-74. The Assistant Registrar, Kishangarh Bas, respondent No. 2 is said to have visited the office of the petitioner, an inspection note was prepared and communicated to the authorities of the society. For certain lapse, the petitioner was placed under suspension under Rule 41 of the Rules framed under the Rajasthan Co-operative Societies Act vide Annexure-1 dated 5.12.1977. 2. The petitioner was even charge-sheeted vide charge-sheet Annexure-2. Reply was filed by the petitioner denying the charges. Ultimately, enquiry was held against the petitioner, but Board of Directors of the society on 7.1.1978 had exonerated the petitioner which was so communicated to the petitioner vide Annexure-5. He was taken back in service, but was warned. That was the end so far charge-sheet was concerned. 3. It is the contention of the petitioner that the respondent No. 2 had not taken the reinstatement of the petitioner in good spirit and became biased. An action under section 32 of the Act was being contemplated for suspending the resolution of the society. Even the suspension order was revoked vide order dated 10.3.1978, copy of the which is attached as Annexure-7. Enquiry was initiated and one Ramavtar Gupta Inspector (Marketing) was appointed as Enquiry Officer vide order dated 25.1.1979. Report is said to have been submitted by such enquiry officer on 17.8.1979. The Assistant Registrar had invoked the powers under Rule 41 of the Rules under the Act and dismissed the petitioner from service vide order dated 1.9.1979. The petitioner aggrieved against the said order did file a revision petition, stating therein that the powers invoked by the Assistant Registrar under Rule 41 had been invoked without jurisdiction. The revision petition was ultimately decided vide Annexure-13 which was dismissed on 1.12.1979 on merits. The revisional authority had observed that he had gone into the record of the enquiry but finding no merit on the case, had dismissed the same, however, the revisional authority had some how omitted to mention or discuss the order Annexure-10-A purported to have been passed under Rule 41 of the Rules by the Assistant Registrar, Co-operative Societies, even though it was so specifically taken by the petitioner. Being aggrieved against the impugned orders, the present writ petition has been filed. 4. The facts as narrated above are not denied. 5. It is the contention of the learned counsel for the petitioner that Rule 41 no where authorises the Assistant Registrar to take any action of termination of service or dismissal from service of any of the employee of the Samiti and the only power which has been enshrined under Rule 41 is the power of suspension which suspension is again to be recommended to the Samiti and in case the Samiti fails to take any action, the Registrar can taken suitable action in this regard. The enabling provisions are reproduced as under : 41(4) - Where in the course of an audit under section 68 or an inquiry under section 70 or an inspection under section 71 or section 72 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 a prima facie evidence against such paid officer or servant and the suspension of such paid officer or servant is necessary in the interest of the society direct the committee of the society 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. 41(5) On receipt of a direction from the Registrar under sub-rule (4) the committee of the society 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. 41(6) 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 whose decision shall be final. 41(7) If the committee fails to comply with the direction issued under sub-rule (4), the Registrar may make an order placing such paid officer or servant under suspension, from such date and for such period as he may specify in the order and thereupon the paid officer or servant, as the case may be, shall be under suspension.' 6. 41(7) If the committee fails to comply with the direction issued under sub-rule (4), the Registrar may make an order placing such paid officer or servant under suspension, from such date and for such period as he may specify in the order and thereupon the paid officer or servant, as the case may be, shall be under suspension.' 6. From the bare reading of the Rule, it is clear that there is no power vested in the Assistant Registrar to dismiss any employee of the Samiti or to even terminate the employee of the Samiti. 7. Without going into the other aspects of the case the order of removal passed against the petitioner initiates from Annexure- 10 only which admittedly has been passed by a person who is not authorised to pass such an order under Rule 41. It is not denied by the parties that if at all any disciplinary action was to be taken ultimately that could have been taken by the Samiti and none else. Apart from above, Rule 41 deals with the suspension of the employee and not removal of the employee from service and hence the order Annexure-10-A and all subsequent and consequent orders in this regard are not only beyond jurisdiction but are also outside the purview of Rule 41. Even though the revision was filed and specific point was raised as is clear from Annexure-11, but it seems that the revisional authority had omitted to note the jurisdiction point of the Assistant Registrar to pass such an order. The revisional authority had only mentioned that he had gone into the record and found that the misconduct is proved and, therefore, the order passed by the Assistant Registrar was justified. The order of the revisional authority is also cryptic and vague. 8. For the reasons mentioned above, the impugned orders cannot be sustained in the eyes of law and are to be quashed and are hereby quashed. 9. It has been stated at the bar by both the counsel that despite the orders having been passed, the present petitioner remained in service and even has superannuated on 31.5.1998 and he was getting his due salary in accordance with his entitlement. The retinal benefits have not been released so far as stated by the learned counsel for the petitioner. It has been stated at the bar by both the counsel that despite the orders having been passed, the present petitioner remained in service and even has superannuated on 31.5.1998 and he was getting his due salary in accordance with his entitlement. The retinal benefits have not been released so far as stated by the learned counsel for the petitioner. For the reasons that the impugned orders are being quashed as discussed above, it goes without saying that the petitioner shall be entitled to all the benefits what-so-ever might have accrued to him, had these orders not been passed. Coupled with the fact that the petitioner despite the orders having been passed remained in service and had superannuated from service as stated by the learned counsel for the petitioner, it shall be appropriate for this court to direct the respondents to release the pay and all retinal benefits immediately within a period of two months from today. It is fit case where the petitioner should be compensated with costs. Costs are assessed as Rs. 5,000/- which shall be paid by the Co-operative Department to the petitioner but shall be recovered from the salary of the concerned Assistant Registrar, under the intimation to the Registry of this court, who had passed the original order Annexure-10-A which order was without jurisdiction. 10. The writ petition is allowed as above.Petition allowed. *******