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2015 DIGILAW 3857 (ALL)

Sadhan Sahkari Samiti Ltd. v. Vinay Singh

2015-12-07

A.P.SAHI, ATTAU RAHMAN MASOODI

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JUDGMENT This appeal has been filed questioning the correctness of the impugned order dated 30.09.2015 passed by the learned Single Judge in Writ Petition No. 5745 (S/S) of 2015 on the ground that the learned Single Judge has proceeded to grant final relief at the interim stage allowing the respondent petitioner to discharge his duties and receive salary. 2. Learned Counsel for the appellant submits that a counter affidavit has already been filed along with a stay vacation application before the learned Single Judge where the stand taken is that the resolution on the basis whereof the respondent-petitioner was claiming appointment, a copy where of has been filed as annexure no. 4 to the writ petition, was a fake resolution. 3. Learned Counsel for the respondent-petitioner, however, points out that the impugned order cancelling the appointment of the respondent-petitioner on 16.09.2015 does not narrate any such reason about the resolution being fake. To the contrary, the reason given is a ban imposed by the Registrar under his circular dated 21.01.1993 read with the circular dated 28.01.1998. 4. Learned Counsel for the respondent-petitioner in this context has invited the attention of the Court to the judgment in the case of Vipin Kumar, Accountant, Sadhan Sahkari Samiti, Bhairsrol, Mainpuri v. Secretary, Sahkari Sadhan Samiti Ltd., Bhairsrol, Mainpuri and others reported in (1995) 3 UPLBEC 1856 which has been referred to in the interim order of the learned Single Judge to contend that this legal position has been settled by this Court and therefore the reason given in the order of cancellation of appointment cannot stand the scrutiny of law. 5. A contempt petition has been admittedly filed by the respondent-petitioner for compliance of the interim order impugned. 6. After the matter was heard and we have found that the reason of fake resolution was not mentioned in the order of cancellation, learned Counsel for the respondent-petitioner states the he will not press the contempt petition at this stage but the entire matter be disposed of finally. 7. Keeping in view the aforesaid contention which has been put forth by the appellant the order impugned in the writ petition according to the respondent-petitioner sustained. 8. Learned Counsel for the respondent petitioner agrees that this appeal may be disposed of finally along with the writ petition. 9. 7. Keeping in view the aforesaid contention which has been put forth by the appellant the order impugned in the writ petition according to the respondent-petitioner sustained. 8. Learned Counsel for the respondent petitioner agrees that this appeal may be disposed of finally along with the writ petition. 9. We have accordingly summoned the records of the writ petition and are disposing off this appeal as well as the writ petition simultaneously. 10. The short issue is that the order dated 16.09.2015 by which the respondent-petitioner is directly affected and is under challenge recites a reason which is not sustainable in view of the decision in the case of Vipin Kumar (supra). However, the appellant who are respondents in the writ petition have taken a clear stand that the resolution which has been passed on the strength whereof the respondent-petitioner is claiming appointment is a fake resolution. 11. This being a pure question of fact and the same being not part of the order dated 16.09.2015, we find that the matter may require a fresh assessment and scrutiny by the Assistant Development Officer (Cooperative) who has passed the impugned order. The fact of the resolution being either fake or otherwise has neither been mentioned nor examined by the Assistant Development Officer (Cooperative) while passing the order dated 16.09.2015, which is now stated in the counter affidavit filed on behalf of appellant. 12. It is well settled that the reasons in the impugned order have to flow from the order itself and cannot be supplemented by means of an affidavit. 13. The respondent-petitioner also did not have opportunity to contest this position and the same having not been done the order dated 16.09.2015 is also hit by the principles of natural justice. Consequently we allow the writ petition and quash the order dated 16.09.2015 with liberty to the Assistant Development Officer (Cooperative) to pass a fresh order after putting the respondent-petitioner to notice. The appeal is rendered infructuous as the writ petition has been allowed. 14. The appeal is consigned to records and the writ petition is allowed with a direction to the Assistant Development Officer to pass fresh orders expeditiously within a period of eight weeks from the date of a certified copy of this order produced before him.