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2001 DIGILAW 375 (HP)

BISHAN DASS v. STATE OF HIMACHAL PRADESH

2001-12-11

C.K.THAKKER, M.R.VERMA

body2001
JUDGMENT C.K. Thakker, CJ. :- This petition is filed by the petitioners against an order passed by the Under-Secretary (Cooperation), to the Government of Himachal Pradesh on February 15, 2001 in Case No.2/2000. 2. The said order was passed in purported exercise of power under Section 93 of the H.P. Cooperative Societies Act, 1968 (hereinafter referred to as the Act). 3. The petitioners are the office bearers of Thana Khas Agriculture Service Society Sera Thana, (Society, for short). The case of the petitioners was that general house of the Society in its meeting dated May 30, 1999, took an action by I which respondent No.3, who was serving as Secretary of the Society was removed. Serious allegations were levelled against respondent No. 3 and according to the Society, respondent No.3 could not explain and clarify his position and an action was taken. A resolution was passed to that effect. 4. Respondent No.3 being aggrieved by the said order, approached the Assistant Registrar, Cooperative Societies, Kangra District at Dharamshala, by filing an appeal. The Assistant Registrar, vide an order dated December 18, 2000, held that no charge-sheet was issued no opportunity of hearing was ever afforded to the Secretary and principles of natural justice had not been observed. He, therefore, held that the decision taken by the Society was not in consonance with law. In the light of the finding recorded by him, he allowed the appeal and passed the following order: "After hearing the arguments and counter arguments of the first party and respondents, counsels and the record produced before the under singed by both the parties and after going through the arguments of the Advocates of first party and respondents and after considering the produced record deeply and after the above mentioned discussion, I do not agree with the Resolution No.28 passed by the respondents general meeting dated 30.5.99 vide which Shri Maya Dass removed from the post of Secretary and quashed the above Resolution. The respondent Society is directed that treat the services of appellant Shri Maya Dass suspended from 30.5.99 and about this issue charge- sheet to the appellant and after completing all the formalities the matter should be decided within 3 months. The decision is announced today on 18.12.2000 in the presence of first party and respondents." 5. The respondent Society is directed that treat the services of appellant Shri Maya Dass suspended from 30.5.99 and about this issue charge- sheet to the appellant and after completing all the formalities the matter should be decided within 3 months. The decision is announced today on 18.12.2000 in the presence of first party and respondents." 5. The effect of the above decision was that the Society was directed to treat the petitioner in service but by keeping him under suspension. A direction was also given to issue charge-sheet to the appellant and after completing all formalities, decide the matter in respect of those charges within a period of three months from the order. 6. Since the effect of the above order was that the appeal filed by respondent No. 3 was allowed by the Assistant Registrar, and the order of removal was set aside but he was ordered to be kept under suspension. He, therefore, preferred an appeal under Section 93 of the Act before the Undersecretary (Cooperation), to the Government of Himachal Pradesh. 7. The Under-Secretary after hearing the parties passed an order which is impugned in the present petition. The Under-Secretary observed that no evidence was produced by the Society to indicate any illegal embezzlement. He also observed that the record of the Society had been inspected and nothing was found against the applicant. The Under- Secretary concluded; "Hence no charge framed against the applicant has been proved". 8. The Under Secretary observed that neither charge-sheet was served nor opportunity was afforded to the applicant and as such, the order of December 18, 2000, passed by the Assistant Registrar, Cooperative Societies, Dharamshala was liable to be set aside and accordingly he set aside the order and the applicant was "allowed to continue as Secretary" of the Society. The said order is challenged before us by the office bearers of the Society. 9. Notice was issued as to admission as well as final hearing on July 2,2001. In CMP No.847 of 2001, interim relief was also granted and the order passed by the Under-Secretary (Cooperation) to the Government of Himachal Pradesh, was stayed. 10. Today, we have heard the learned counsel for the parties. It was contended by Mr. Barowalia, learned counsel for the petitioners that the order passed by respondent No. 2 - Under Secretary is without jurisdiction as no appeal was maintainable. 10. Today, we have heard the learned counsel for the parties. It was contended by Mr. Barowalia, learned counsel for the petitioners that the order passed by respondent No. 2 - Under Secretary is without jurisdiction as no appeal was maintainable. It was further submitted that even if it is assumed for the sake of argument that the appeal filed by the third respondent was maintainable or that it could be treated as revision petition, the approach adopted by respondent No. 2 could not be said to be legal and valid and on that ground also, the order is liable to be set aside. It was then submitted that in view of the allegations levelled against respondents No. 3 he could not have been allowed to continue as has been done by the second respondent and the order deserves interference. Finally, he submitted that as stated in the affidavit-in-rejoinder, even the allegations leveled against the third respondent were proved. He, therefore, submitted that the petition deserves to be allowed by setting aside the order passed by respondent No.2 and by restoring the order passed by the Assistant Registrar. 11. On behalf of respondents No. 1 and 2 - authorities, an affidavit-in-reply is filed supporting the order passed by the second respondent. It was stated in the affidavit that appeal could be filed under Clause 26 of the Service Regulations. The said Regulation has been quoted in the affidavit-in-reply, which reads as under; "Appeal:- Except in the case of awarding punishment of warning, an appeal shall lie against every order awarding punishment to the Secretary to the Assistant Registrar Cooperative Societies incharge whose decision shall be final. Every appeal shall be presented to the Appellate Authority within thirty days of the date on which the order appealed against was communicated to him." (Emphasis supplied) 12. It was submitted that since nothing was proved against respondent No.3 (appellant before the Appellate Authority), he was allowed to continue as Secretary. 13. On behalf of respondent No. 3, Mr. Sharma contended that the action taken by the Managing Committee of the Society was illegal, without jurisdiction and null and void. Similarly, the order passed by the Assistant Registrar was also without jurisdiction and void ab initio so far it adversely affected respondents No. 3. The argument of Mr. 13. On behalf of respondent No. 3, Mr. Sharma contended that the action taken by the Managing Committee of the Society was illegal, without jurisdiction and null and void. Similarly, the order passed by the Assistant Registrar was also without jurisdiction and void ab initio so far it adversely affected respondents No. 3. The argument of Mr. Sharma is that when an appeal was filed by respondent No. 3 against the action of the Society and the Appellate Authority was satisfied that the order dated May 30, 1999, was held to be bad, no alternative was left to the Assistant Registrar except to set aside the said order. It was not open to him to quash removal and at the same time permit the Society to keep respondents No. 3 under suspension and allow opportunity to the Society so that appropriate action can be taken. As the said action was illegal and without jurisdiction, the order was non est. Respondent No.3 was constrained to approach the State Government by instituting proceedings. The counsel conceded that though the proceeding initiated was given nomenclature of appeal, but even if this court is of the view that no appeal lay against the said order, it could have been treated as revision under Section 94 of the Act. Under the said provision, the State Government is enabled to call for the records and proceedings before the Registrar or any person subordinate to him and "may pass thereon such order as it thinks fit". Since the State Government was fully satisfied that the order passed by the Assistant Registrar was in consonance with law, the appeal (or revision) was rightly allowed and the order impugned in the present petition was passed, which is in consonance with law. He also supported the order passed on merits. He, therefore, submitted that the petition deserves to be dismissed. 14. So far as the merits are concerned, in view of the fact that the proceedings were pending at the relevant time and even now the report is submitted, which may be challenged by the aggrieved party in appropriate proceedings, we express no opinion one way or the other, which may likely to cause prejudice to either party. 14. So far as the merits are concerned, in view of the fact that the proceedings were pending at the relevant time and even now the report is submitted, which may be challenged by the aggrieved party in appropriate proceedings, we express no opinion one way or the other, which may likely to cause prejudice to either party. In the facts and circumstances of the case, however, we have no doubt in our minds that the order passed by the State Government cannot be said to be in consonance with law. Even if it is assumed that the order passed by the Assistant Registrar was not according to law, in the light of the allegations levelled against respondents No. 3, when he was ordered to be placed under suspension, such action ought not to have been interfered with by the State Government either in appeal or in revision. 15. The matter did not end there. Though the revisional authority has jurisdiction to pass such order as it thinks fit, it is well settled that it is not as per the whims and caprice of the revisional authority and it has to pass an order in accordance with law. When serious allegations have been levelled against respondent No. 3 including financial irregularities and when those facts were brought before the revisional authority, it ought not to have interfered with an order of suspension even if there was some irregularity in passing such order. 16. The matter can still be looked at from a different angle. The approach adopted by the revisional authority is not in consonance with law. Presumably there was misconception on the part of respondent No.2 in applying the relevant principles of law. As per order passed by the Assistant Registrar, respondents No. 3 was to be kept under suspension. While setting aside the order, the second respondent observed that the charges were not proved. In our opinion, at that stage, such a consideration was foreign since no punitive action was taken. The punitive action, which was initially taken by the Society was held to be bad and rightly set aside by the Assistant Registrar. Thereafter, preventive action was to be taken by the Society of suspending the Secretary. In our considered opinion, the concept that whether the allegations were proved or not was not at all relevant and germane at that stage. 17. Thereafter, preventive action was to be taken by the Society of suspending the Secretary. In our considered opinion, the concept that whether the allegations were proved or not was not at all relevant and germane at that stage. 17. On all these grounds, in our opinion, the petition deserves to be allowed and is accordingly allowed. The order passed by the second respondent is quashed and set aside and the order passed by the Assistant Registrar is restored. 18. We may, however, hasten to add that all the observations made hereinabove have been made by us for the purpose of deciding the present petition and we may not be understood to have expressed any opinion one way or the other on the merits of the matter. It is open to the parties to take all contentions before the appropriate authority in accordance with law. CMPNo.847 of 2001 19. In view of the disposal of the writ petition, the present application is also disposed of Interim order is vacated. -