Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 223 (ALL)

ATUL CHAND TYAGI v. ZILA SAHKARI FEDERATION LTD.

2007-02-01

BHARATI SAPRU

body2007
JUDGMENT Hon’ble Bharati Sapru, J.—Heard learned counsel for the petitioner Sri Y.K. Sinha and Sri Satish Chaturvedi appearing on behalf of the respondents. The present writ petition has been filed by the petitioner against an order of dismissal passed against him dated 25.9.2003 by the respondent No. 2 Secretary Zila Sahkari Federation Limited, Vikas Bhawan, Moti Bagh, Bulandshahr. 2. The facts of the case are that the petitioner was appointed as an engineer in the Zila Sahkari Federation Limited, Bulandshahr in the grade of Rs. 400-750. The letter of appointment dated 28.2.1981 is on record as Annexure 1 to the writ petition, which records that U.P. Institutional Service Board, Lucknow vide its letter dated 6.1.1981 had approved his appointment as a Cold Storage Engineer. There is another letter on record dated 1.4.1981, which states that services of the petitioner would be governed under the U.P. Sahkari Simiti Adhiniyam, 1965 and Regulations framed under Section 122 thereof. The Regulations have been framed under Section 122 which are known as U.P. Co-operative Societies Employees’ Service Regulations, 1975 (hereinafter referred to as the Regulations, 1975). 3. These present proceedings emanate from an order of dismissal passed on 25.9.2003 but prior to this also, the services of the petitioner had been terminated on 23.11.1984 and that termination was settled by an award of the Labour Court in adjudication case No. 190 of 1985 by the Labour Court held that the order terminating services of the petitioner was illegal and directed his reinstatement in service with full back wages and continuity of service. 4. The respondents challenged the award before this Court and the award of the Labour Court was set aside on the condition that the petitioner be reinstated in service and be paid wages during the pendency of that writ petition. 5. Thus the first series of the litigation ensued. Ultimately the petitioner filed writ petition No. 30902 of 2000 in which this Court issued an interim mandamus on 1.8.2000 to pay to the petitioner his earned wages due from August, 1999 to 30.12.1999 and subsistence allowance from 31.12.1999. 6. The second series of litigation started from 24.12.1999 when the petitioner was served with a charge-sheet on 28.1.2002. Ultimately the petitioner filed writ petition No. 30902 of 2000 in which this Court issued an interim mandamus on 1.8.2000 to pay to the petitioner his earned wages due from August, 1999 to 30.12.1999 and subsistence allowance from 31.12.1999. 6. The second series of litigation started from 24.12.1999 when the petitioner was served with a charge-sheet on 28.1.2002. It is the contention of the petitioner that once the charge-sheet was served on the petitioner, the petitioner made demand from the respondents to supply to him various documents but the respondents refused to supply the documents to the petitioner. 7. The petitioner made representation on 11.2.2002 and on 3.3.2003 to supply various documents to the petitioner. The contention of the petitioner that after the charge-sheet was submitted, no documents were supplied to him and the enquiry proceeded ex parte without giving to the petitioner a proper opportunity of hearing and without giving to the petitioner an opportunity to examine or to cross-examine any witness. On the contrary, the petitioner contends that he was threatened that proceedings would be concluded against him ex parte. 8. Meanwhile, the petitioner filed writ petition No. 47746 of 2003 praying for a mandamus challenging the order of suspension and made prayer for payment of his dues. This Court in writ petition No. 47746 of 2003 issued an interim mandamus directing the respondents to take steps to complete enquiry prior to 5.5.2003. The enquiry was concluded on 12.6.2003 on the basis of documents. This fact is also recorded in the order of dismissal dated 25.9.2003, which records that the enquiry was concluded on the basis of documentary evidence. 9. Thereafter a show cause notice was issued to the petitioner on 25.7.2003. The petitioner replied to show cause notice and thereafter the impugned order was passed on 25.9.2003. 10. The impugned order also records charges against the petitioner, which are in the nature of misappropriation and embezzlement and the total amount found misappropriated by the petitioner alleged to be a sum of Rs. 8,18,763.90. The conclusion is that the petitioner has caused loss to the respondent Federation to the tune of Rs. 8,18,763.90 and therefore he has been dismissed. 11. 8,18,763.90. The conclusion is that the petitioner has caused loss to the respondent Federation to the tune of Rs. 8,18,763.90 and therefore he has been dismissed. 11. Learned counsel for the petitioner has raised two arguments mainly—the first argument as raised by the learned counsel for the petitioner is that the enquiry set up against the petitioner was vitiated because the enquiry was conducted and concluded in violation of the principles of natural justice and without giving to the petitioner a proper opportunity of hearing. 12. The second argument of the petitioner is that the order of dismissal has been passed against the petitioner without due compliance of the Regulation 87 i.e. it has been passed without taking prior concurrence of the U.P. Co-operative Institutional Service Board. 13. In support of his first argument, the learned counsel for the petitioner has contended that the enquiry was illegal, arbitrary and ex parte and no opportunity of hearing was given to the petitioner. The order of dismissal was passed on the basis of enquiry report dated 12.6.2003. The report was made without giving to the petitioner an opportunity of hearing as the enquiry officer never called the petitioner. For this purpose, the petitioner has placed reliance on para 43, 38, 50, 52, 60, 60-A, 60-B, 60-C of the writ petition, in which the petitioner has categorically averred that the enquiry report dated 12.6.2003 was made without giving to the petitioner an opportunity of hearing. The petitioner was never called by the enquiry officer; no evidence of any witness was recorded in his presence and the petitioner was not provided any opportunity to cross-examine any witness or to lead any evidence in rebuttal. 14. Learned counsel for the petitioner has argued that the petitioner was facing serious charges which was lead to his dismissal and was being put to enquiry and disciplinary proceedings being awarded with penalties under Regulations 84 (i) (f) and (i) (g), which are quoted below : "84. 14. Learned counsel for the petitioner has argued that the petitioner was facing serious charges which was lead to his dismissal and was being put to enquiry and disciplinary proceedings being awarded with penalties under Regulations 84 (i) (f) and (i) (g), which are quoted below : "84. 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 does 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 employee’s conduct; (e) reduction in rank or grade held substantively by the employee; (f) removal from service; or (g) dismissal from service.” 15. Learned counsel for the petitioner has argued that it was necessary and incumbent upon the respondents to therefore follow the procedures as set out in Regulations 85 (i) (a) and (b) of U.P. Co-operative Employees Service Regulations, 1975, which ensured the due observance of the principles of natural justice. Regulations 85 (i) (a) and (b) are quoted hereinbelow : "85. Disciplinary proceedings.—(i) The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer (referred to in clause (iv) below) with due observance of the principles of natural justice for which it shall be necessary that— (a) The employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days; (b) Such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires;” 16. The second argument of the learned counsel for the petitioner is in respect of the observance of the Regulation 87, which is to be followed in the cases of removal and dismissal. The Regulation 87 is quoted hereinbelow : "87. The second argument of the learned counsel for the petitioner is in respect of the observance of the Regulation 87, which is to be followed in the cases of removal and dismissal. The Regulation 87 is quoted hereinbelow : "87. Order imposing penalty under sub-clauses (e) to (g) of clause (1) of Regulation 84 shall not be passed except with the prior concurrence of the Board.” 17. The contention of the petitioner that the order of removal/dismissal is an order provided under Regulations 84 (i) (f) and (i) (g) of the Regulations 1975 and therefore such an order imposing extreme penalty of dismissal, cannot be passed except with prior concurrence of the U.P. Co-operative Societies Institutional Service Board. 18. Sub-clause (iv) of clause (i) of the Regulation 2 of the Regulations defines Board’ as U.P. Co-operative Institutional Service Board.’ 19. Therefore the learned counsel for the petitioner has contended that since an order of removal being passed without the prior concurrence of the U.P. Co-operative Societies Institutional Service Board, is an order of removal passed in violation of the provisions of Regulation 87 of the Regulations aforesaid. 20. In reply to the contentions as raised by the learned counsel for the petitioner, Sri Satish Chaturvedi has argued that the enquiry which was conducted against the petitioner was conducted in accordance with rules of natural justice and a proper opportunity of hearing was given to the petitioner to defend himself and the enquiry was not vitiated for violation of the provisions of natural justice or violation of the Regulations 84 and 85 (i) (a) and (b). 21. In reply to the second contention, Sri Satish Chaturvedi has argued that prior concurrence of the U.P. Co-operative Institutional Service Board was also taken and has placed on record a document dated 19.9.2003 as Annexure CA-3 to the counter affidavit, which is purported to be minutes of District Level Committee of the Federation. He has argued that because the work of this wing was confined to the district, therefore the District Level Committee could grant prior concurrence or approval to an order of dismissal. 22. I have heard learned counsel for the petitioner for both parties at length. He has argued that because the work of this wing was confined to the district, therefore the District Level Committee could grant prior concurrence or approval to an order of dismissal. 22. I have heard learned counsel for the petitioner for both parties at length. The position, which emerges from the record and materials as placed before this Court is that as per the order of the dismissal dated 25.9.2003, it is clearly recorded that the enquiry report was made on the basis of documentary evidence. The impugned order of dismissal does not record that either any witness was called by defence or by the prosecution or that the petitioner was given any opportunity to examine or cross-examine or to rebut any evidence. Clearly the procedure provided under Regulations 85 (i) (a) and (b) was not followed in the case. Therefore the inescapable conclusion is that the enquiry is vitiated for contravention of the provisions of Regulations 85 (i) (a) and (b). 23. The second position, which emerges is that although it was found necessary to take prior approval of the U.P. Co-operative Institutional Service Board to give punishment to the petitioner, an order of dismissal was passed without taking prior approval of the U.P. Co-operative Societies Institutional Service Board as is provided under Regulation 87. The District Level Committee which made minutes and which have been appended as Annexure CA-3 to the counter affidavit, is not U.P. Co-operative Institutional Board within the meaning of clause (iv) of the Regulations, therefore the requirement of Regulation 87 has also not been followed. 24. In view of the above position, which has emerged, I am of the opinion that in the present case, the order of dismissal has been passed in contravention of the provisions of Regulations 85 (i) (a) and (b) read with the Regulation 87. 25. The contention as raised by the petitioner are well-founded and substantiated from the above position. Such being the case, the order of dismissal dated 25.9.2003 is set aside. I leave it open to the respondents to proceed in accordance with law from the stage where it has been found defective that is to say that the enquiry will be revived. It will be conducted and concluded in accordance with Regulations 85 (i) (a) and (b) within a period of three months. I leave it open to the respondents to proceed in accordance with law from the stage where it has been found defective that is to say that the enquiry will be revived. It will be conducted and concluded in accordance with Regulations 85 (i) (a) and (b) within a period of three months. The petitioner will be treated to be on suspension and will be paid usual subsistence allowance. The petitioner is expected to co-operate with the enquiry. 26. The writ petition is allowed as above. The impugned order of dismissal dated 25.9.2003 passed by the respondent No. 2 (Annexure 14 to the writ petition) is set aside. There will be no order as to costs. ———