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2007 DIGILAW 824 (PAT)

Sushil Kumar Dubey v. State Of Bihar

2007-04-24

AJAY KUMAR TRIPATHI

body2007
Judgment 1. There are 17 petitioners before this Court and they have challenged the order dated 30.3.2006 which is contained in annexure-1. By virtue of identical orders petitioners have been discharged from service by the respondents, Sasaram-Bhabhua Central Co-operative Bank Ltd. Rohtas. This order of discharge has come about after the petitioners had rendered service under the respondents for 21 years. They also sought quashing of the resolution dated 4.3.2006 based on which the orders of discharge has come to be passed against the petitioners. 2. According to petitioners they were appointed by the Sasaram-Bhabhua Central Co-operative Bank Ltd. (hereinafter referred to as "the Bank") in the year 1985 on daily wages. After having worked as such vide resolution dated 15.1.1988 contained in annexure-4, services of 30 persons came to be regularised. Consequent to the decision of the Board of Directors, orders of regularisation were issued and they are contained in annexure-5 series. One of them is order dated 12.5.1988 issued in favour of petitioner no. 1. Similar orders were also issued with regard to other petitioners. Petitioners submit that the Bank in question was a Co-operative Body having its own bye-laws to govern its day to day affairs and had fullest freedom to carry out its activities in terms of its bye-laws. Role of the Government in day to day affairs was limited to the powers which was given under the Bihar Cooperative Societies Act, 1935. The Government had no role to play in matters of appointment of all the staff and employees who were working under the Bank prior to 1989. Bank is to be run by the Board of Directors and they took decision in the best interest of the Society and its members. Since the respondents Bank did not even come within the definition of State within the meaning of Article 12 of the Constitution of India, therefore it cannot be said that they were bound by Articles 14 and 16 of the Constitution of India in the matters of public employment. 3. On 9.8.1989 an amendment brought about in the Bihar Co-operative Society Act came to be published. By virtue of this amendment section 66B was incorporated in the Act. By this amendment State Government acquired powers to issue special or general orders from time to time to determine the nature, number of posts and mode of recruitment of personnel of Co-operative Societies. By virtue of this amendment section 66B was incorporated in the Act. By this amendment State Government acquired powers to issue special or general orders from time to time to determine the nature, number of posts and mode of recruitment of personnel of Co-operative Societies. The State Government had power to prescribe among other things:(1) the qualifications, age and experience, (2) pay scale and other emoluments, (3) the method of recruitment (4) conditions of service, and (5) disciplinary procedure to be followed. Sub-section 2 of 66B also states that any appointment made in contravention of the order of the State Government under subsection (1) shall be void as if no such appointment ever existed. Therefore, by the amendment brought about in the year, 1989 the State Government started exercising control in matters of appointment under various Co-operative Societies. 4. Petitioners submit that this amendment was prospective in nature and the same did not relate back to the time when the petitioners were appointed under the Bank. The petitioners further state in the writ application that vide resolution No. 5 dated 10.6.1994 services of the petitioners were approved by the Board of Directors. The problem started after the respondents Bank regularised/approved services of only 30 persons out of many persons who were appointed on daily wages earlier. It is their case that about 54 persons were left out which caused heart burning. In fact services of those persons who were not regularised were terminated. 5. C.W.J.C. No. 2272 of 1994 came to be filed by one Raghunath Prasad & Ors. challenging order of termination. A Bench of this Court heard the matter and passed order dated 18.7.1995. The Court after discussing various issues disposed of the application, directing the Bank to refer the matter of removal of those petitioners to the Registrar Co-operative Societies. Registrar Co-operative Societies was directed to consider the matter in entirety and pass speaking order in this regard. Misc. Case No. 174 of 1995 in terms of the direction of the High Court came to be filed before the Registrar. Registrar after hearing the parties passed a detailed order dated 2.12.1996. This order has been brought on record as annexure-7 to the writ application. Misc. Case No. 174 of 1995 in terms of the direction of the High Court came to be filed before the Registrar. Registrar after hearing the parties passed a detailed order dated 2.12.1996. This order has been brought on record as annexure-7 to the writ application. Petitioners point out from the order of the Registrar that after due deliberation he came to the opinion that removal of certain employees by the Bank was not an illegal order as those persons were working on daily wages and had not been regularised by the Bank. The Registrar however held and found that petitioners of this case was not similar to those employees who were removed because these petitioners had been regularised by the Bank, based on the decision of the Board of Directors and there was no illegality in such appointment. Despite the order passed by the Registrar Co-operative Societies, annexure-7, the matter did not rest. Those employees who were removed pursued their matter alleging discrimination before various forums. The issue was raised on the floor of the Bihar Legislative Council by a member in the year 2000 i.e. four years after issues came o rest. It seems from narration contained in annexure-1/A that letters were issued to the Bank by Under Secretary of the Department of Co-operative, Government of Bihar seeking details on the issue since a member of Legislative Council had sought answers. 6. A three members committee of the Bank therefore decided to examine the matter a fresh. They have given their opinion in annexure 1/A to the writ application. They came to a conclusion that the petitioners ought to be removed from service because they were not legally and properly appointed. Based on the recommendation of the three members Committee notices were issued to the petitioners which are contained in annexure-8. They were asked to show cause as to why their services should not be terminated. Petitioners filed their show cause, listing out the reasons and facts but the Managing Committee without applying its mind and based on the recommendation of three members committee resolved on 14.3.2006 to issue termination letters to the petitioners. This resolution has been brought on record as annexure-2 to the writ application. The subsequent orders of termination contained in annexure-1 series dated 30.3.2006 came to be issued. The petitioners have therefore challenged both annexures 1 series as well as annexure-2. 7. This resolution has been brought on record as annexure-2 to the writ application. The subsequent orders of termination contained in annexure-1 series dated 30.3.2006 came to be issued. The petitioners have therefore challenged both annexures 1 series as well as annexure-2. 7. Petitioners have assailed the orders in question on the ground that since the petitioners were duly regularised and confirmed by an earlier resolution of the Board, passed in this regard in the year 1988, therefore their services could not be brought to end after more than 20 years on extraneous considerations and pressure. They also submit that the issue had come to rest, on the direction of this Court, after the order of the Registrar Cooperative Societies contained in annexure-7 came to be passed. The order therefore settled the issue and since the order of the Registrar was never challenged before any court, therefore, the matters came to rest. 8. Petitioners submit that there was no occasion for the respondents at this belated stage to hold that the appointment of the petitioners,was illegal and in violation of Articles 14 and 16 of the Constitution of India. The petitioners rely on a decision of this Court in the case of Ajay Kumar Mishra and Ors. V/s. Registrar Co-operative & Ors., 1995 2 PLJR 397. The petitioners rely on several paragraphs of this decision specially paragraphs 15 to 20. They placed reliance on the judgment to impress upon this Court that prior to the amendment brought about in the year 1989 these bodies were not even State within the meaning of Article 12 of the Constitution of India. Therefore there was no question of applicability of Articles 14 and 16 of the Constitution of India in matters of employment under the Bank at the material time. The Bank was only a society governed by the rules and its bye-laws. Any decision therefore now being taken to hold the appointment of the petitioner to be illegal on that ground is untenable. 9. A counter affidavit however, has been filed on behalf of the respondents Bank and they have tried to justify their decision of order of removal passed against the petitioners. One of the thrust of the arguments of the respondents are that these petitioners were appointed and later regularised illegally. 9. A counter affidavit however, has been filed on behalf of the respondents Bank and they have tried to justify their decision of order of removal passed against the petitioners. One of the thrust of the arguments of the respondents are that these petitioners were appointed and later regularised illegally. They submit that in terms of the resolution which was taken by then Managing Committee contained in annexure-4 decision was taken to regularise some of the employees but then it was also resolved that a list of those persons to be regularised would be drawn up and that list will bear the signature of the Chairman, the then Executive Officer and the General Manager. The contention of the Bank is that the orders of regularisation were issued without obtaining signature of all the three persons. They also take a stand that the case of 54 persons who were removed by the Bank earlier was referred to the Registrar and the Registrar had to consider whether the removal of those 54 persons was legal and valid. The issue of regularisation as such was not before the Registrar, therefore the order of the Registrar is neither here nor there. The respondents also accept the position that a question was raised on the floor of the House which compelled the respondents Bank to re-enquire into the matter. Based on the opinion rendered by the Committee decision was taken to remove the petitioners from service. The respondents also tried to explain the order contained in annexure-5 by which the petitioner were regularised. They state that it was not an order of regularisation but only confirment of regular scale to some of the petitioners. The question therefore arise whether the respondents were correct in taking a decision in the year 2006 to remove these petitioners from service after more than 20 years? 10. This Court has already taken note of some of the submissions which were made by the petitioners and they have also relied on a decision of this Court to demonstrate that when the petitioners were appointed under the Bank there was no question of applicability of Articles 14 and 16 of the Constitution of India. Since the respondents were a society they were not amenable to any control in matters of appointment either of the State Government or to a writ court. This change came about only in the year 1989. Since the respondents were a society they were not amenable to any control in matters of appointment either of the State Government or to a writ court. This change came about only in the year 1989. It is a fact that the issue of removal of 54 persons by the Bank travelled to this. Court but the same culminated into a direction to the Registrar Co-operative Societies who carried out a detailed enquiry into the matter and passed a speaking order. Registrars order contained in annexure-7 in the writ application came to hold that the service of the petitioners were regularised by the Bank and it was in accordance with law and the rules of the relevant time. Merely because an issue was raised on the floor of the House, it cannot be used to reopen the matter which was made to rest in the year 1996. 11. The question is Bow long can an employer be allowed to use the bogey of illegal appointment to chop the neck of persons who have rendered service for more than two decades under them with their consent? After all Articles 14 and 16 of the Constitution of India cannot be used to unsettle a settled position when there are many evidence on record to show that decisions have been taken by the competent authority to regularise the services of these petitioners. Nit-picking by respondents Bank after more than 20 years on the ground that the list issued for regularisation did not carry signature of one or another members cannot be used as way and means to get rid of the services of the petitioners. They cannot draw a premium of their own action or inaction. This Court has to take note of this fact that the appointment under the Bank was not at par or akin to public employment. 12. This Court accordingly comes to a conclusion that the decisions of the respondents Bank both contained in annexure-1 as well as annexure-2 to discharge the petitioners from service is therefore, arbitrary exercise of power showing total lack of application of mind to facts and law. The same are accordingly quashed. The respondents are directed to reinstate the petitioners forthwith. 13. This writ application accordingly stands allowed.