Bheira Agricultural Cooperative Society v. Shiv Kumar
2012-03-27
DEEPAK GUPTA, V.K.AHUJA
body2012
DigiLaw.ai
Judgment Per Deepak Gupta, J 1. This appeal by the appellant Bheira Agricultural Cooperative Society, Bheira is directed against the judgement dated 28.6.2007 whereby the learned Single Judge held that the copy of the enquiry report had not been supplied to the petitioner before terminating his services; the petitioner had been seriously prejudiced by the non supply of the copy of the enquiry report; the disciplinary authority could not terminate the services of the petitioner before permitting him to make a representation against the enquiry report and lastly the appellate authority and the revisional authority had not taken into consideration the specific plea raised by the petitioner that the enquiry was not conducted in accordance with law. 2. Shri Ajay Sharma, learned counsel for the Cooperative Society has raised a preliminary submission that in view of the law laid down by a Division Bench of this Court in Chandresh Kumar Malhotra vs. H.P.State Cooperative Bank and others 1993(2) Sim.L.C.243 no writ could lie against the cooperative society. In our view this objection is totally misconceived since in the present case after the termination order passed by the cooperative society the respondent-employee in terms of the service rules filed an appeal against the order of his termination before the Assistant Registrar, Cooperative Societies, Una which appeal was dismissed on merits on 29.1.2000. Thereafter revision petition was filed and the same was dismissed on 16.3.2006. Thus the writ petitioner does not only challenge the order passed by the Cooperative Society but challenge is also made to the orders passed by the statutory authorities duly empowered to decide such matters under the H.P. Cooperative Societies Act. This view has already been taken by a Full Bench of this Court in Ajmer Singh vs. The Hamirpur Distt. Co-op. Marketing and Consumers Federation Ltd. and others, 1995(1) Sim.L.C.395, wherein it was held that where the impugned order is passed by an authority constituted under the Act then a writ petition under Article 226 of the Constitution of India would be maintainable. 3. Coming to the merits – this case has a long and chequered history. From the record it is apparent that the original writ petitioner joined service with the appellant-society on 1st July, 1980. In August 1988, the petitioner was arrested in connection with a murder case and remained in judicial lockup for a period of eight months.
3. Coming to the merits – this case has a long and chequered history. From the record it is apparent that the original writ petitioner joined service with the appellant-society on 1st July, 1980. In August 1988, the petitioner was arrested in connection with a murder case and remained in judicial lockup for a period of eight months. Therefore, on 18th August, 1988 the petitioner was placed under suspension and thereafter on 9th March, 1989 he was discharged from service. The petitioner challenged his termination order which led to filing of CWP No. 287 of 1997 by the Society and it was directed in this petition that the appellant-Society shall pay arrears of salary to the employee in case he shows that he was not gainfully employed during the period in question. It was further directed that as an appeal in the murder case is pending in this Court the appellant would not be reinstated for a period of six months. It would also be pertinent to mention that it was brought to the notice of this Court that there were charges of misappropriation of funds against the private respondent and the Court also granted six months time to complete the inquiry in this regard. The petitioner thereafter filed contempt petition being Cont.Pet.(C) No. 47 of 1996 complaining that the directions given in the writ petition had not been complied with. In the contempt petition a direction was issued that the inquiry be completed within a period of eight weeks from the date of its commencement. Thereafter the Assistant Registrar inquired into the matter and held an inquiry. Admittedly, the writ petitioner was associated with the inquiry. The inquiry report went against the petitioner on various grounds. Thereafter the Society sent a notice on 22.09.1997 to the petitioner. The notice is in Hindi and its translation is as follows:- “Registered AD. The Bheira Agricultural Cooperative Society, Bheira, Tehsil Amb, Distt. Una. To Shiv Kumar son of Shri Sukhdev Ram Resident of Village and P.O. Hamboli, Tehsil Amb, District Una, H.P. Sub:- Notice - to Shri Shiv Kumar for termination of his services from the post of Secretary.
The notice is in Hindi and its translation is as follows:- “Registered AD. The Bheira Agricultural Cooperative Society, Bheira, Tehsil Amb, Distt. Una. To Shiv Kumar son of Shri Sukhdev Ram Resident of Village and P.O. Hamboli, Tehsil Amb, District Una, H.P. Sub:- Notice - to Shri Shiv Kumar for termination of his services from the post of Secretary. That in compliance to the order of the Hon’ble High Court, Shimla dated 19.3.1997 an inquiry was conducted against you by the Assistant Registrar, Cooperative Societies, Una who vide his report dated 10.7.1997 has found that all the charges levelled against you stand proved. Therefore, by means of the copy of this resolution you are given one months notice to show cause why your services as Secretary be not terminated. A copy of the inquiry report dated 10.7.1997 is enclosed. Therefore, in the General House it was resolved that the services of Shri Shiv Kumar, former Secretary be terminated by giving him one months notice. This information is being given to you by registered post. Therefore, after 30 days of the receipt of the letter you shall cease to be the Secretary of the Society. Sd/- President/Secretary. The Bheira Agricultural Cooperative Society, Bheira.” 4. The petitioner did not reply to this notice though admittedly he received the same. He treated this is an order of termination and filed an appeal on 1st November, 1997 before the Assistant Registrar, Cooperative Societies, Una, who dismissed the same. Thereafter, revision petition was filed which was also rejected by the Additional Secretary (Cooperation) to the Government of Himachal Pradesh, which led to the filing of the writ petition. The writ petition was allowed as detailed above. Hence this petition. 5. The first question is whether the judgement of the Apex Court rendered in Managing Director, ECIL, Hyderabad and others vs. B.Karunakar and others, (1993) 4 SCC 727, is applicable to inquiries held by Cooperative Society. 6. It would be pertinent to mention that in all the cases which have been brought to the notice of this Court where the judgement in ECIL case (supra) has been applied normally relate to termination of service of the employees in terms of the CCS Rules where the employees have protection of the Rules and Article 311 of the Constitution of India. Here, we are dealing with an employee of Cooperative Society.
Here, we are dealing with an employee of Cooperative Society. Neither the bye-laws nor the rules provide that copy of the inquiry report must be supplied by the disciplinary authority. In such cases the rules and the procedure followed should only comply with the rules of natural justice and an opportunity should be given to the person to put forth his case. If the disciplinary authority is different from the inquiry authority then copy of the inquiry report needs to be supplied before final decision is taken. In this case the copy of the inquiry report was supplied with the notice. 7. We must take into consideration the fact that the resolution was being passed by a village body and by persons who were neither well versed in law nor masters of the language. The first half of the notice clearly indicates that the notice is a show cause notice calling upon the writ petitioner to show cause why his services be not terminated. Admittedly, copy of the inquiry report was sent with this notice. The second part of the notice is not happily worded and does in a sense indicate that a decision has been taken to terminate the service of the employee but when it is read in its entirety the only conclusion which can be drawn is that it was a show cause notice where the members of the society had taken a preliminary decision to terminate the services of the petitioners but the employee was called upon to show cause why his services be not terminated. 8. The employee was served with a copy of the notice and he should have replied to the notice, challenging the inquiry report or the proposed punishment. We are of the considered view that since the petitioner was supplied a copy of the inquiry report alongwith the notice he had an opportunity to show cause. No prejudice was caused to him even if the notice is not very happily worded. The petitioner could have shown prejudice only if the reply to the notice was not considered but when the employee himself did not care to reply to the show cause notice he did so at his own risk. Therefore, we are not in agreement with the first three conclusions arrived at by the learned Single Judge. 9.
The petitioner could have shown prejudice only if the reply to the notice was not considered but when the employee himself did not care to reply to the show cause notice he did so at his own risk. Therefore, we are not in agreement with the first three conclusions arrived at by the learned Single Judge. 9. As far as the last conclusion that the appellate authority and the revisional authority did not decide the question whether the inquiry was conducted in accordance with law is concerned, we are again not in agreement with the finding of the learned Single Judge. This is a case where the petitioner had only made a vague allegation that the inquiry had not been conducted in accordance with law. Merely saying this, is not enough. In the revision the petitioner was also represented by a counsel. In appeals and revision many points are raised but some points are not urged and not taken into consideration. If the parties feel that some arguments which were urged have not been decided then the parties must approach the concerned authority. This cannot be done for the first time in writ proceedings. Furthermore, as held above the only allegation was that the inquiry was not conducted in accordance with law is a very vague allegation and nothing substantial has been stated even before us as to how the inquiry was vitiated not being in accordance with law. 10. In any event we are of the view that one of the main charges stands fully proved by the admission of the employee himself. Charge No.1 is that the employee had retained a sum of Rs.4118.50/- with himself for more than one year. The employee does not deny the fact that the money remained with him. He in his statement before the Inquiry Officer stated that since he remained in police custody w.e.f. 12.8.1988 to February, 1989 in connection with the murder case he could not deposit this amount in the society but thereafter he had made good the amount after he was released on bail. A major portion of this money was deposited by the petitioner on 18.6.1989, when he deposited Rs.1200/- and on 7.8.1989 he deposited Rs.2900/-. The last balance sum was deposited on 15.1.1990. Even according to the employee he was released on bail some time in February, 1989.
A major portion of this money was deposited by the petitioner on 18.6.1989, when he deposited Rs.1200/- and on 7.8.1989 he deposited Rs.2900/-. The last balance sum was deposited on 15.1.1990. Even according to the employee he was released on bail some time in February, 1989. If that be correct there is no explanation as to why he kept the money with him after his release on bail on February, 1989 till June 1989 and August 1989. This is a clear case of temporary embezzlement. 11. In such cases where an employee has kept the money of the society with him it is for the society to decide whether the employee should be retained in service or not. We have to differentiate between the employee of the society and a Government servant. A society is a body consisting of various individuals and if this body looses confidence in its employee then the Court should not force the society to retain an employee especially when there are serious charges of embezzlement and there is total lack of faith in the employee. 12. In view of the above discussion, we are of the considered view that the learned Single Judge erred in allowing the writ petition. The appeal is accordingly allowed and the judgement of the learned Single Judge is set-aside and consequently the writ petition filed by the petitioner shall be deemed to have been dismissed. No order as to costs.