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2008 DIGILAW 2010 (ALL)

RAM SEWAK SHARMA v. STATE OF UTTAR PRADESH

2008-09-22

ASHOK BHUSHAN

body2008
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Shri S.K. Yadav, learned counsel for the petitioner; Shri H.R. Mishra and the learned Standing Counsel for the respondents. 2. Counter and rejoinder affidavits have been exchanged, the writ petition is being finally decided. 3. By this writ petition, petitioner has prayed for quashing the order dated 10.2.2005, Annexure-10 to the writ petition passed by the District Administrative Committee (hereinafter called the “DAC") whereby it was stated that no action can be taken on the joining report of the petitioner since the order of the Regional Administrative Committee (hereinafter called the “R.A.C.") dated 8.7.2004 is subsequent to (12th Amendment) Rules, 2004. 4. Brief facts necessary for deciding the writ petition are; the petitioner was appointed as Cadre Secretary on 18.12.1976. The service conditions of the Cadre Secretary are governed by Rules namely, The Uttar Pradesh Primary Agricultural Co­operative Credit Societies Centralised Service Rules, 1976 (hereinafter called the “Rules 1976’). On certain allegations, the petitioner was placed under suspension and disciplinary proceedings were initiated against him and by an order dated 6.8.1998 the petitioner was removed from service by the District Administrative Committee (hereinafter called the “DAC"). On proof of certain charges which also included the charges of embezzlement the petitioner filed an appeal which was dismissed on 23.1.1999 by the Regional Administrative Committee. Petitioner claims to have filed a review appeal before the appellate authority when the said review appeal was pending. The petitioner filed Writ Petition No. 3700 of 2004 which was disposed of by this Court on 3.2.2004 with the observation that since the petitioner having already pursuing his alternative remedy of representation/review, the petition cannot be entertained. Subsequently, the RAC issued notice on 17.3.2004, asking the petitioner to appear before the RAC, and the RAC subsequently fixed 16.4.2004 and on that date the RAC took a decision by which the punishment of removal/dismissal was modified by punishment of stoppage of one increment with a direction to deposit certain amount and thereafter reinstatement of the petitioner without any back wages was ordered. In pursuance of the order of the RAC dated 7.7.2004 petitioner claims to have deposited the amount as directed by the RAC and then submitted a joining report before the DAC. In pursuance of the order of the RAC dated 7.7.2004 petitioner claims to have deposited the amount as directed by the RAC and then submitted a joining report before the DAC. The DAC on the joining report of the petitioner passed the impugned order dated 10.2.2005 refusing to accept the joining of the petitioner on the ground that the relevant rules having been amended by (12th Amendment) Rules, 2004 w.e.f. 30.6.2004, no order could be made by RAC dated 8.7.2004. 5. This Court while entertaining the writ petition issued notice on 17.3.2005 to the petitioner to show cause as to why the punishment awarded to him be not enhanced. Petitioner was asked to file supplementary affidavit in reply to which he has filed supplementary affidavit on 12.7.2005. 6. Learned counsel for the petitioner challenging the order contended that the mere fact that by (12th Amendment) Rules, 2004 the appellate authority has been changed and shall not affect the right by the RAC to decide the appeal. He submitted that there was no provision in the (12th Amendment) Rules, 2004 as to what will happen with regard to the pending appeals. The pending appeal has to be decided by the appellate authority and the RAC thus clearly had jurisdiction to decide the appeal and the order dated 8.7.2004 was in accordance with law. He has placed reliance on the judgment of the Hon’ble Supreme Court JT 1996 (4) SC 1990, Commissioner of Income Tax, Bangalore v. Smt. R. Sharadamma. 7. A counter affidavit has been filed on behalf of the respondent No. 4 in which it was stated that by (12th Amendment) Rules, 2004, U.P. Primary Agricultural Cooperative Credit Societies Centralised Service, 1976 the appellate authority has been changed and after 30.6.2004, the RAC was no longer the appellate authority, hence it had no jurisdiction to decide the appeal and the appellate authority has now become the State Cadre Authority, hence the appeal if any could have been pressed before the State Cadre Authority only. It has been stated in the counter affidavit that the DAC has rightly issued the impugned letter to the petitioner. 8. I have considered the contention of the parties and perused the record. 9. It has been stated in the counter affidavit that the DAC has rightly issued the impugned letter to the petitioner. 8. I have considered the contention of the parties and perused the record. 9. The Rules, 1976 have been framed under the Uttar Pradesh Co-operative Societies Act, 1965 (hereinafter called the “Act, 1965’) for regulating the service conditions of the Cadre Secretaries and the petitioner is governed by the Rules, 1976. Under the said 1976 Rules, the DAC is the appointing authority and the regulations have been framed under Rule 30 which provides for disciplinary inquiry against a member of the Centralised Service Rules, 1976 provide for constitution of the State Cadre Authority and RAC under Rule 7. 10. According to Regulation 1978, the RAC is the appellate authority. The 1976 Rules were amended by the (12th Amendment) Rules, 2004 w.e.f. 30.6.2004. The said rules were published in the Gazette and by virtue of Rule 1 sub-rule (2) they came into effect from the date of publication in the Gazette. Rule 7 of the aforesaid rules which provides for constitution of the State Cadre Authority, RAC and DAC was amended. The provision of RAC has been deleted w.e.f. 30.6.2004. “Rule 8 of Rules 1976 provides for power and function of the State Cadre Authority. Rule 8 (i) sub-rule (10) as amended by (12th Amendment) Rules, 2004 provides as under : Rule 8 (1) The authority shall be the Chief Policy making body for the Centralised Service. The Authority shall have following powers, duties and responsibilities : (i) ...................... (ii) ..................... (x) to hear appeals against the orders passed by the District Administrative Committee.” 11. Thus, by the Uttar Pradesh Primary Agricultural Co-operative Credit Societies Centralised Service (Twelfth Amendment) Rules, 2004 the RAC has been deleted and the power to hear the appeal which was earlier vested in the RAC is now vested in the State Cadre Authority by virtue of amendment in Rule 8. Earlier by virtue of Rule 11 prior to (12th Amendment Rules, 2004) the power to hear appeal against the order of the DAC was vested in the RAC. Rule 11 sub-rule (iv) (prior to amendment) is quoted below : “11. Earlier by virtue of Rule 11 prior to (12th Amendment Rules, 2004) the power to hear appeal against the order of the DAC was vested in the RAC. Rule 11 sub-rule (iv) (prior to amendment) is quoted below : “11. Powers and duties of Regional Administrative Committee.—(1) Subject to the policy laid down and guidelines and instructions issued by the Authority, the Regional Committee shall be responsible for the general supervision and control of the members of the centralised service in the region. The Regional Committee shall have also the following duties and responsibilities— (i) ....................... (iv) To hear and decide appeals arising from the official orders of major punishment (i.e. dismissal, removal or reduction in rank) passed by the District Committee;" 12. Rule 11 quoted above has been deleted by the (12th Amendment) Rules, 2004. Thus, the effect of the amendment by (12th Amendment) Rules, 2004 was that the power to hear appeal is transferred and vested in the State Cadre Autho-rity and the RAC which was functioning prior to amendment has been deleted. Thus, in the present case when the order was passed by the RAC dated 7.7.2004 it was not in existence and it having been deleted on 30.6.2004. The RAC was not having any appellate jurisdiction w.e.f. 30.6.2004 and the power to hear appeal was vested in the State Cadre Authority. 13. In view of the above, the DAC did not commit any error in not taking any action in pursuance of the resolution dated 7.7.2004 of RAC and no error has been committed by the DAC in not accepting the joining report of the petitioner. 14. Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in Commissioner of Income Tax (supra). In the said case before the Apex Court the penalty proceedings were pending before the Inspecting Assistant Commissioner under Section 274 (2) of the Income Tax Act, 1961 (hereinafter called the “Act, 1961"). Certain amendments were made under Section 274 (2) of the Act, 1961, consequence of which was that no penalty proceedings could be proceeded with when the particulars having been concealed was not of more than Rs. Twenty Five Thousand. 15. Certain amendments were made under Section 274 (2) of the Act, 1961, consequence of which was that no penalty proceedings could be proceeded with when the particulars having been concealed was not of more than Rs. Twenty Five Thousand. 15. It was contended before the Apex Court that even if the amendment has been made in Section 274 (2) of the Act, 1961 the same shall have no effect on pending proceedings of the penalty which has been referred to by the Inspecting Assistant Commissioner. The Apex Court referring to its earlier judgement laid down the following in paragraphs 8 and 10 : “8.The Court then observed that once a reference was validly made to the Inspecting Assistant Commissioner he did not lose the jurisdiction to deal with the matter on account of the aforesaid Amendment Act. It pointed out that the Amending Act does not contain any provision that the references validly pending before the Inspecting Assistant Commissioner should be returned without passing any final order if the amount of income in respect of which the particulars have been concealed did not exceed Rupees twenty five thousand. The said circumstance, it held, supported the inference drawn by the Court that the Inspecting Assistant Commissioner continued to have jurisdiction to impose penalty. The Court observed : “It is also true that no litigant has any vested right in the matter of procedural law but, where the question is of change of forum, it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the Court of first instance and unless the Legislature has, by express words or by necessary implication, clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different Tribunals or forums.” 10. In our opinion, the principle underlying the said decision is squarely applicable herein. In this case also, a reference was made to the Inspecting Assistant Commissioner in accordance with the law in force on the date of reference. Once the Inspecting Assistant Commissioner was thus seized of the matter, he did not lose seizin thereof on account of the deletion of sub-section (2) of Section 274. In this case also, a reference was made to the Inspecting Assistant Commissioner in accordance with the law in force on the date of reference. Once the Inspecting Assistant Commissioner was thus seized of the matter, he did not lose seizin thereof on account of the deletion of sub-section (2) of Section 274. This is also the principle underlying Section 6 of the General Clauses Act.” 16. The proposition which was laid down by the Apex Court in the said case was that the forum of appeal is a vested right. The right becomes vested when the proceedings are initiated in the Tribunal or a Court and unless the legislature has by express words and necessary implications clearly indicate, the vested right will continue irrespective of change of jurisdiction of different Tribunals or forum. There cannot be any dispute to the proposition as laid down by the Apex Court in the said case. However the present case has a distinguishing feature. 17. In the present case the right of appeal has not been taken away but the forum has been changed. The RAC which was vested earlier with power to hear the appeal against an order of the DAC has been deleted by virtue of (12th Amendment) Rules, 2004 and the power to hear the appeal is vested in the State Cadre Authority w.e.f. 30.6.2004. The RAC being not in existence after the amendment rules, there is no question of its exercising any jurisdiction in pending appeals, when the forum was changed and the power to hear appeal was vested in the State Cadre Authority the pending appeals were required to be heard by the new forum created. The RAC was not even in existence after 30.6.2004, therefore, there was no occasion for it to hear any appeal by it. The judgment relied on by the counsel for the petitioner in the above case does not help the petitioner in the present case. 18. With regard to the notice issued by this Court on 17.3.2005, as to why the punishment awarded to the petitioner be not enhanced, learned counsel for the petitioner contended that under the 1978 Regulations, the power is vested with the appellate authority even to enhance the punishment after notice, hence no consideration of such issue is required in this case. 19. 19. In view of the foregoing discussion, it is clear that the review appeal of the petitioner was to be heard, if at all, by the State Cadre Authority and the RAC did not have any jurisdiction to decide the appeal and the order of the RAC dated 7.7.2004 was without jurisdiction. The DAC has rightly took a decision not to act on such decision. However, in view of the fact that a view has been taken that power to hear the appeal only vested in the State Cadre Authority, it will be open for the petitioner to submit a copy of his review appeal which was filed before the RAC at the time when it had jurisdiction before the State Cadre Authority as per (12th Amendment) Rules, 2004, who may consider the review appeal of the petitioner and take an appropriate decision in accordance with law. 20. As submitted by the learned counsel for the petitioner, since the appellate authority has also the power to enhance the punishment, it is not necessary to take any decision in consequence to notice dated 17.3.2005, and all matters be left open to the appellate authority to take decision accordingly. 21. In the result, the prayer of the petitioner for quashing the order dated 10.2.2005 passed by the DAC is refused. However, liberty is given to the petitioner to file the copy of the review appeal along with the copy of this order before the State Cadre Authority which is now the appellate authority who after receiving the copy of the review appeal may consider and take an appropriate decision in accordance with law. In view of the fact that the matter is pending for quite a long period, the said appellate authority shall expeditiously decide the review appeal preferably within a period of six months from the date of filing a certified copy of the order before it. 22. It is made clear that this Court is not expressing any opinion on the merits of the case and it is for the appellate authority to look into the entire facts and circumstances of the case and take a decision in accordance with law. 23. Subject to above, the writ petition is disposed of. ————