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Himachal Pradesh High Court · body

2004 DIGILAW 334 (HP)

NARESH SINGH THAKUR v. STATE OF H. P.

2004-12-16

BAKHSHISH KAUR, D.S.AMIST

body2004
JUDGEMENT Justice Bakhshish Kaur, Chairman,: Sh. Naresh Singh Thakur, is Aggrieved by the order dated 28.8 1995 whereby he has been placed under suspension with immediate effect Factual position so far as relevant for determination of the controversy needs to be noted in brief. The applicant was appointed as Co-operative Education Instructor on 17.4.1967. For the post of Manager in the printing press applications were invited from Co-operative Instructors vide memo dated 9.4.1970. The applicant who had applied for the post of Manager was duty interviewed and selected for the post of Manager vide annexure A-2 The Himachal Pradesh State Co-operative Union (in short Union) had three wings Le.(1) Co-operative Education (2) Co-operative Printing Press and (3) Cooperative Training. AH the three wings are being controlled by the officers of equal status working in the identical pay scale. The Himachal Pradesh State Co-operative Union Service Recruitment (Promotion and condition of service) Rules, 1987 (hereinafter referred as Rules) have been duly approved by respondent No. 3, copy whereof is annexure A-3. As per Rules post of Principal, Co-operative Training Centre and the cooperative education officer have been included in the feeder category to the post of Secretary. However, the post of Manager has not been included in the feeder category for the post of Secretary. The applicant had been stagnating in the same post i.e. Manager, Printing Press since 1970 and as per Rules he is not eligible for promotion to the post of Secretary. No avenue of promotion is provided. Though there is no reason for not including the post of Manager for further promotion to the post of Secretary. In view of factual position above and on account of Sh. G.R. Sharma and one Sh. PS. Jaret were likely to be promoted to the post of Secretary without considering the claim of the applicant. He submitted representation Annexure A-4 dated 14.7.1994. but it was rejected vide Annexure A-6 dated 11.10.1994. 2. Sh. Hans Raj Chauhan, respondent No 4 who was holding the post of Superintendent i.e. the post of ministerial side and did not fulfil the criteria was promoted to the post of secretary. He is matriculate and does not fulfil the essential qualification. He submitted representation Annexure A-4 dated 14.7.1994. but it was rejected vide Annexure A-6 dated 11.10.1994. 2. Sh. Hans Raj Chauhan, respondent No 4 who was holding the post of Superintendent i.e. the post of ministerial side and did not fulfil the criteria was promoted to the post of secretary. He is matriculate and does not fulfil the essential qualification. The respondent No.4 took over the charge of Secretary on 1.12.1994 vide annexure A-7, therefore, applicant aggrieved by the act of the respondent filed 0A.3378/94, wherein he had prayed the following reliefs:- (i) That the impugned Annexures A-1, A-5, A-6 dated 22nd/23rTl October, 1990. 11.10.1994 and 1st Dec, 1994 respectively may be quashed and set aside; (ii) That Annexure A-4, dated 22.9.1994 may be quashed to the extent whereby the applicant has been deprived of the benefits of seniority and promotion to the post of Secretary after applying the principles of severability and the Respondent No.1 may be directed to frame separate service rules for the Press employees as per Annexure A-4. (iii) That the respondents No.1 to 3 may be directed to consider the post of Manager, Printing Press equivalent to the post of Principal, Co-operative Training Centre and Coop. Education Officer for further promotion to the post of Secretary on the analogy that all the three posts i.e. Manager, Printing Press; Principal, Coop. Training Centre and Coop. Education Officer are in the same pay scale of Rs.2000-35000. (iv) That the respondents No.1 to No. 3 may also be directed to reframe the I seniority list after showing the applicant at Sr. No.2 before Shri G.R. Sharma. (v) Any other relief deemed fit and proper in the circumstances of the case may also be granted." 3. The .original application was disposed of vide order Annexure A-8 by treating it as representation. 4. A press sub committee was constituted by Board of Directors to look into I the affairs of the union. A meeting of press sub committee was held on 13.6.1995 wherein president of the union was authorised to appoint a special committee to look into the affairs of the printing press and suggest measures for improving its functioning and find out persons responsible for lapses etc.. A meeting of press sub committee was held on 13.6.1995 wherein president of the union was authorised to appoint a special committee to look into the affairs of the printing press and suggest measures for improving its functioning and find out persons responsible for lapses etc.. Consequently vide notification dated 26.6.1995 a special committee consisting of Thakur Karam Singh , Ex-MLA as Chairman of the committee with two members namely Hans Raj respondent No.4 and D.R. Verma, Assistant Registrar (Audit) Co-operative Societies Directorate of Co-operation Shimla was constituted. The report submitted by the Committee was taken up for consideration by Executive Committee on 22.8.1995 and as result of which it was decided that the applicant be placed under suspension and charge-sheet was issued against him for departmental inquiry with further direction to apprise the Board of Directors with the action of the committee. The Executive Committee also authorised the respondent No.4 to issue suspension orders and issue charge-sheet The inquiry report submitted by the committee is vitiated and is liable to be set aside. 5. On account of participation of respondent No.4 who is inimical to applicant because the applicant and already challenged the promotion of the applicant for post of Secretary. The applicant has therefore sought the following relief: “(i) That the report submitted by the Special Committee under the Chairmanship of Shri Karam Singh Thakur, submitted to the President of respondent Union on 21.8.1995 may be quashed and set aside and all actions taken by the Executive Committee or the Board of Directors pursuant to the report of Special Committee may also be quashed and set aside and the applicant may be held entitled for all the consequential benefits accruing due on that account; (ii) That the order dated 23.9.1995 at Annexure A-9 putting the applicant under suspension may also be quashed and set aside and the applicant may be held entitled to all consequential benefits as a result of quashing of the suspension orders and the period of suspension may be directed to be treated as on duty with arrears of pay and allowances. (iii) That direction may be issued to respondents No 1 to 3 to restrain them from associating respondent No.4 in any manner with fact finding enquiry, if any, which may be conducted with respect to the working of Printing Press of the respondent Union. (iii) That direction may be issued to respondents No 1 to 3 to restrain them from associating respondent No.4 in any manner with fact finding enquiry, if any, which may be conducted with respect to the working of Printing Press of the respondent Union. (iv) That the appointment of respondent No.4 to the post of Secretary may be declared to be illegal and same may b e quashed and set aside, (v) That the respondents may be directed to produce the enquiry report submitted by the Special Committee headed by Shri Karam Singh Thakur and all records pertaining to all further actions taken by respondents on the basis of said enquiry for the perusal of this Honble Tribunal, (vi) Any other order in the circumstance of the case as deemed fit may also be passed in favour of the applicant (vii) That the respondents may be burdened with the cost of this original application.” 6. The respondents No.1 and 4 have jointly filed written reply. The consistent stand taken by them is mis-joinder of respondents No.2 and 3 as party as they have no concern. The respondent No.1 is an autonomous body and is being managed by its Boards of Directors and Executive Committee. The application is premature as suspension of the applicant is neither penalty nor subject to judicial scrutiny. He has been charge-sheeted on the basis of recommendation of Executive Committee duly approved by the Board of Directors. The committee was of the opinion that the working of the printing press is required to be streamlined and the petitioner working as manager of the printing press was found gross negligent and careless in discharging his duty as serious irregularities were detected by the committee. It was recommended that suitable action be taken against him as he has committed serious irregularities. It was the applicant who had forfeited the promotion to the post of lecturer, because he was enjoying more perks as manager, therefore, he has no right to claim promotion to the post of Secretary. He is working as manager. Therefore, original application is liable to be dismissed. 7. The applicant, in rejoinder, has re-iterated the averments contained in the original application and controverted the pleas raised by respondents. 8. We have heard Sh. Dilip Sharma, learned counsel for the applicant and Sh.Chirag B. Singh, teamed Deputy, Advocate General for the respondent No.2 and Sh. He is working as manager. Therefore, original application is liable to be dismissed. 7. The applicant, in rejoinder, has re-iterated the averments contained in the original application and controverted the pleas raised by respondents. 8. We have heard Sh. Dilip Sharma, learned counsel for the applicant and Sh.Chirag B. Singh, teamed Deputy, Advocate General for the respondent No.2 and Sh. Y.P.S.Dhaulta, counsel for the respondent No.1. 9. The substantive grievance of the applicant is that respondent No.4 is from ministerial side and was holding the post of superintendent before his promotion. His promotion was challenged by the applicant as he is usurper of the post of Secretary thus on account of this he became inimical to applicant He was also directly concerned with the working of the printing press union. Even the cheques of the printing press are issued under the joint signature of the accountant the applicant being manager of the press and the respondent No.4 as Secretary. Therefore, respondent No.4 was intimately connected with the working of printing press. On account of his involvement in the affairs he was not expected to give impartial finding regarding functioning of the press. His association as one of the member of special committee constituted vide notification dated 25.6.1955 is against cannons of natural justice because it was he who was inimical to the applicant, therefore, he being biased will not deliver independent and impartial findings. Thus report submitted by the special committee recommending the suspension of the applicant is vitiated on account of bias of respondent No.4 10. One of the grounds raised by the applicant was that Hans Ram Chauhan i.e. respondent No. against whom he has filed OA-3378/94 was member of the committee and he had recommended his suspension. The relevant record relating to the constitution of the committee was perused with the help of the learned counsel for the parties, ft became dear that Hans Raj Chauhan was also charge-sheeted. This fact is obviously dear from the documents produced by the respondents and one of the documents is dated 19.7.2001 vide which respondent No.4.was charge-sheeted vide Himcofed (P) 2001-1965 dated 19.7.2001. He had submitted reply to the charges levelled against him. Inquiry Officer was appointed who inquired into the charges. Vide order dated 23.7.2002 to was removed from service of Himcofed with immediate effect The relevant portion of Reorder reads asunder "Whereas Sh. He had submitted reply to the charges levelled against him. Inquiry Officer was appointed who inquired into the charges. Vide order dated 23.7.2002 to was removed from service of Himcofed with immediate effect The relevant portion of Reorder reads asunder "Whereas Sh. H.R Chauhan Superintendent/Accounts Officer submitted his reply on 13.11.2001 and his reply was placed before the Executive Committee under Bye Law No 12 b (v) on 15.3 2002 and the said committee after examining the inquiry report and reply of Sh. H.R. Chauhan Superintendent/Accountants Officer carefully, came to the conclusion that all the charges have been proved against Sh. H.R. Chauhan & the points raised by Sh. SR. Chauhan have no merits. The Executive committee has decided to remove him from the service of the Hicofed with immediate effect subject to the approve of BOD, which has been accorded by the BOO vide resolution No.6 dated 15.3.2002. 11. This order is also accompanied with detailed inquiry report statement of misconduct or misbehavior \n support of each article of charge against Hans Raj Chauhan officiating secretary and let of documents etc. 12. Above being the position we have no hesitation to hold that the findings of the special committee under the chairmanship of Sh. Karam Singh Thakur submitted to the President of respondent union on 21.8.1995 is liable to be quashed and set aside and all action taken by the executive committee and by the Board of directors in pursuance of the report of special committee is liable to be quashed. Particularly Hans Raj Chauhan could not be allowed to act as member of the committee and judge when he himself was under cloud and inimical to the applicant He could not act both as prosecutor and judge at the sane time 13. The doctrine of fairness and the duty to act fairly is a doctrine developed in the administrative of law field to ensure the rule of law and to prevent failure of justice. Object of the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. 14. In view of the aforesaid OA is allowed. The findings of the special committee submitted on 21.8.95 and the order dated 23.8.1995 placing the applicant under suspension is hereby quashed and set aside. The applicant is held entitled to all consequential benefits. To this limited extent original application is allowed. -