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2016 DIGILAW 1120 (HP)

Nikku Ram v. State of H. P.

2016-06-22

MANSOOR AHMAD MIR, SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present Letters Patent Appeal is directed against the judgment dated 1.9.2015 passed by the learned Single Judge of this Court in CWP No.1938 of 2010, whereby the writ petition filed by the petitioner (appellant herein), was dismissed, (for short ‘impugned judgment’). 2. Briefly stated, the facts necessary for adjudication of the case are that on 19.5.1989, the petitioner was engaged as salesman/commission agent by respondent No.4-Society on 50% commission basis. However, in General House of respondent No.4-Society held on 3.6.2001 (Annexure P-1), taking note of the audit report for the year 1999-2000, wherein it was pointed that an amount of Rs.56115.60 paise is due from petitioner Nikku Ram, took a decision to afford one month time to the petitioner for recovery of the aforesaid amount, reserving its right to take legal action against him. 3. In the aforesaid meeting of General House, working of petitioner was also discussed, wherein Members of the House were informed that work and conduct of the official, named above, has not been found satisfactory in the last few years. It was also brought to the notice of the House that the petitioner has not lifted the `Ration’ (essential commodities) for the last three months and he misused/misappropriated an amount of Rs.56115.60 paise. It was also informed that apart from not lifting essential commodities for last three months, he has also misappropriated the mid-day meal of the school children. Accordingly, keeping in view the misuse/misappropriation of an amount of Rs.56115.60 paise, coupled with aforesaid irregularities committed by the petitioner, General House of the respondent No.4-Society took unanimous decision to terminate his services with immediate effect. 4. Petitioner being aggrieved with decision of termination dated 3.6.2001, filed representation before the Secretary Co-operation, to the Government of Himachal Pradesh (respondent No.1), who forwarded the same to the Assistant Registrar, Co-operative Societies, Palampur, District Kangra, (respondent No.3) which was treated as revision petition under Section 94 of the H.P. Co-operative Societies Act, 1968 (for short, `Act’). 5. Respondent No.3 after receipt of the representation (Annexure P-2), summoned both the parties and, after perusal of the record made available to him, held that the termination of the petitioner is in public interest. 6. 5. Respondent No.3 after receipt of the representation (Annexure P-2), summoned both the parties and, after perusal of the record made available to him, held that the termination of the petitioner is in public interest. 6. It appears that, during the pendency of the aforesaid revision petition before respondent No.3, competent authority had already initiated surcharge proceedings under Section 69 of the Act (Act No.3 of 1969), on the basis of which, an enquiry under Section 69(1) of the Act was entrusted to one Shri Desh Raj Chaudhary, Inspector, Cooperative Societies, Baijnath, vide Office Order endst.No.Coop-6-14/95(Steno) 2076- 80, dated 9.5.2002, to inquire into the alleged mis-appropriation and mis-use of the funds by the present petitioner as well as another person; namely Sansar Chand (Ex-Secretary of the respondent No.4-Society). Competent authority vide order dated 8.6.2004 (Annexure P-3), on the basis of documentary evidence available on record, held the present petitioner liable for recovery of an amount of Rs.15.507/- with further direction to the petitioner as well as other person Shri Sansar Chand to deposit the same within a period of 60 days, failing which Society shall be entitled to recover interest at the rate of 15% alongwith 2% penal interest. 7. Present petitioner being aggrieved with the termination order vide resolution dated 3.6.2001, order dated 21.8.2002 passed by respondent No.3 on the representation and order dated 8.6.2004 passed by respondent No.3 on the revision petition as well as surcharge proceedings under Section 69 of the Act filed an appeal before the Additional Registrar, Cooperative Societies, H.P., Dharamshala (Respondent No.2) which was dismissed by him vide order dated 3.4.2007 (Annexure P-4). 8. Petitioner further made an attempt to assail the order dated 3.4.2007 passed by respondent No.2 before Special Secretary (Cooperation) to the Government of Himachal Pradesh (respondent No.1) by filing second appeal under Section 93(2) of the Act. 9. Respondent No.4-Society contested the appeal preferred by the petitioner before respondent No.1 on the ground of maintainability. Respondent No.4-Society contended that since petitioner has already availed the remedy of appeal provided under Section 93(2) of the Act, no further appeal is maintainable before the Special Secretary (Cooperation) to the Government of Himachal Pradesh. 10. 9. Respondent No.4-Society contested the appeal preferred by the petitioner before respondent No.1 on the ground of maintainability. Respondent No.4-Society contended that since petitioner has already availed the remedy of appeal provided under Section 93(2) of the Act, no further appeal is maintainable before the Special Secretary (Cooperation) to the Government of Himachal Pradesh. 10. Respondent No.1 vide order dated 20.4.2010 (Annexure P-5) held that since petitioner has already availed remedy of appeal under Sections 93 and 94 of the Act, revision petition is not maintainable before the Government and accordingly dismissed the same. 11. In the aforesaid background, petitioner by way of writ petition approached this Court seeking quashment of order dated 20.4.2010 (Annexure P-5), passed in case No.47/07 by respondent No.1, order dated 3.4.2007, (Annexure P-4) passed by respondent No.2, orders dated 3.6.2001, 21.8.2002 and 8.6.2004 passed by respondent No.3. Petitioner also prayed for direction to the respondents to reinstate him with all consequential benefits by declaring the order of termination bad. 12. Petitioner contended that he was not given an opportunity of being heard by the respondent No.3 before passing order dated 3.6.2001. He also contended that there is nothing on record to suggest that he embezzled the amount in question. Rather, it was the responsibility of Shri Sansar Chand, being Secretary at that point of time, to repay the amount as pointed in the audit report. He also raised issue with regard to non-completion of the quorum on 3.6.2001, where General House decided to terminate the services of the petitioner. 13. However learned Single Judge vide impugned judgment, after hearing the parties as well as perusing the record, dismissed the writ petition preferred by the present appellant. Hence, the present appeal. 14. We have heard learned counsel for the parties and have gone through the record of the case. 15. Careful perusal of the impugned judgment clearly establish that each and every point raised by the petitioner in the writ petition has been specifically dealt with by the learned Single Judge and as such, this Court does not see any reason to interfere with the judgment passed by learned Single Judge. 15. Careful perusal of the impugned judgment clearly establish that each and every point raised by the petitioner in the writ petition has been specifically dealt with by the learned Single Judge and as such, this Court does not see any reason to interfere with the judgment passed by learned Single Judge. However, this Court, solely with a view to ascertain that the judgment passed by learned Single Judge is based upon correct appreciation of the material available on record, undertook an exercise even in this appeal to examine the entire record to reach just and fair decision. 16. Perusal of the proceedings of the General House i.e. resolution dated 3.6.2001 (Annexure P-1), wherein decision to terminate the services of the petitioner was taken, clearly suggests that an audit report for the year 1999-2000 was placed before the General House of the respondent No.4-Society. It was specifically pointed out that an amount of Rs.56,115.60 paise is recoverable from the petitioner. Apart from above, working of the petitioner for the last few years was also examined/analyzed and irregularities committed by the petitioner in the mid-day meal of the school children was also brought to the notice of the House. Moreover, factum with regard to non-lifting of essential commodities for the last three months by the petitioner also brought to the notice of the House. Accordingly, General House of the respondent No.4-Society, which was admittedly attended by 60 members on the given date, took a unanimous decision to terminate the services of the petitioner. It also emerges from the record that vide resolution dated 26.6.2000, 11.8.2000 and 12.4.2001, petitioner was called upon to file reply to the show cause notices/resolutions, but there is no document available on record from where it can be inferred that the petitioner filed a reply to the aforesaid resolution/notice issued by the respondent No.4-Society. Since, there was no satisfactory reply to the allegations leveled against the petitioner in the General House, as have been referred hereinabove, no fault whatsoever, can be found with the majority decision of the General House of respondent No.4-Society in terminating the services of the petitioner. 17. Petitioner, by way of writ petition, also raised the issue of non-completion of quorum on 3.6.2001. But, as emerges from perusal of Annexure P-1 i.e. proceedings of meeting of General House held on 3.6.2001, it can be seen that 60 persons were present in the meeting. 17. Petitioner, by way of writ petition, also raised the issue of non-completion of quorum on 3.6.2001. But, as emerges from perusal of Annexure P-1 i.e. proceedings of meeting of General House held on 3.6.2001, it can be seen that 60 persons were present in the meeting. Learned Single Judge, while rejecting the aforesaid objection of the non-completion of quorum, has taken note of bye-law No.23 of the respondent No.4-Society, wherein it is specifically provided that the quorum of General House is 1/3rd or 30, whichever is less. Admittedly, in the present case, as has been mentioned above, 60 Members were present in the meeting and as such, there is no force in the contention raised by the petitioner that the quorum was not complete. Further perusal of the order dated 21.8.2002 i.e. Annexure P-2, leaves no doubt in our mind that respondent No.1, while disposing of revision petition under Section 94 of the Act, has taken note of each and every contention raised by the petitioner. Rather, close scrutiny of order dated 21.8.2002 suggests that petitioner was afforded various opportunities by respondent No.4-Society to lift essential commodities on regular basis and deposit his sale proceeds in the K.C.C. bank, but it appears that petitioner failed to lift the essential commodities quota for the months of February to June, 2001, which compelled the respondent-Society to initiate action against him. Since the petitioner was engaged by the respondent No.4- Society to supply essential commodities by way of Public Distribution System (for short `PDS’) to the general public, it was duty of the petitioner, being salesman, to ensure that public at large does not suffer for want/requirement of essential commodities. But, in the present case, as emerges from the record, petitioner admittedly failed to lift the quota of essential commodities continuously for three months despite several reminders issued by the Society, hence, action of the respondent No.4-Society, in terminating the services of the petitioner and to appoint new person at his place, cannot be termed to be illegal or unjustified in the present facts and circumstances of the case. 18. 18. Respondent No.3 also dealt with an issue of misappropriation of several Special Credit Limit (CCL), K.C.C. Bank, Branch Office, Deol amounting to Rs.17,080.60 paise and misutilization of sale proceeds of PDS amounting to Rs.13.932/- and found that due to the negligence of the petitioner, respondent No.4-Society was made to pay higher rate of interest on the Credit Limit to the bank. Rather, it emerges from the order dated 8.6.2004, passed by respondent No.3, in the surcharge proceedings under Section 69 of the Act that the matter was got inquired into by appointing one Shri Desh Raj Chaudhary, Inspector, Co-operative Societies, Baijnath. Perusal of Annexure R-1/A, annexed with the reply filed by respondent No.4-Society, suggests that the petitioner himself admitted before the Inspector Cooperative Societies, Baijnath that amount of Rs.17,080.60 paise and Rs.13,932/- is recoverable from him as an advance and balance stock at the time of audit. Moreover, record nowhere suggests that petitioner, at any point of time, rendered any explanation/reason for illegally and un-authorisedly using the amount, as has been referred hereinabove. 19. Another submission made by the petitioner that another person; namely; Sansar Chand, Ex-secretary of the respondent No.4 Society, was the actual culprit and he has been falsely implicated, also appears to be baseless and without any reasons because perusal of order dated 8.6.2004, passed by respondent No.3 in the surcharge proceedings under Section 69 of the Act, demonstrates that amount of Rs.17,080.60 paise as advance and mis-utilization of sale proceeds, amounting to Rs.13,932/-, was actually recoverable from the petitioner, who himself admitted the aforesaid irregularities before the Inquiry Officer, appointed by the authorities to inquire into the matter. Accordingly, respondent No.3, while passing order in surcharge proceedings under Section 69 of the Act, has specifically held present petitioner liable for recovery of an amount of Rs.15,507/-. Further, for remaining amount of Rs.24,909/-, a person, namely; Shri Sansar Chand, has been held liable and as such contentions raised by the petitioner that he is being made liable to pay the aforesaid amount for misappropriation of the funds, which have been actually misappropriated by aforesaid Sansar Chand, cannot be accepted being contrary to the record. 20. Further, for remaining amount of Rs.24,909/-, a person, namely; Shri Sansar Chand, has been held liable and as such contentions raised by the petitioner that he is being made liable to pay the aforesaid amount for misappropriation of the funds, which have been actually misappropriated by aforesaid Sansar Chand, cannot be accepted being contrary to the record. 20. Further perusal of the order dated 3.4.2007 passed by respondent No.2, while hearing the appeal filed by the present petitioner against the order dated 3.6.2001, 21.8.2002 and 8.6.2004, leaves no scope for this Court to differ with the findings returned by the competent authorities as envisaged under the Act, and learned Single Judge of this Hon’ble Court. Rather, careful perusal of the orders, referred hereinabove, suggests that the authorities below, while passing orders at hand, had very meticulously dealt with each and every aspect of the matter. As far as passing of order dated 20.4.2010 by respondent No.1, whereby appeal preferred by the petitioner under Section 93(2) was dismissed on the ground of maintainability is concerned, this Court is of the view that Section 94 of the Act bars the second appeal before the State Government. In this regard Section 94 is reproduced hereinabelow: “94. Review and Revision: (1) the State Government except in a case in which an appeal is preferred under Section 93 may call for and examine the record of any enquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting on his authority, and may pass thereon such orders as it thinks fit. (2) The Registrar may at any time:- (a) review any order passed by himself; or (b) call for and examine the record of any inquiry or inspection held or made under this Act of the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such order thereon as he thinks fit”. 21. Bare perusal of the provisions, referred hereinabove, clearly suggest that State Government has no power to entertain an appeal especially where appeal under Section 93 has already been filed by the party concerned. 21. Bare perusal of the provisions, referred hereinabove, clearly suggest that State Government has no power to entertain an appeal especially where appeal under Section 93 has already been filed by the party concerned. Section 94, as referred hereinabove, only provides for the power of revision to the State Government that too only in those matters which are not covered by Section 93 of the 1968 Act. Hence order passed by respondent No.1 dated 20.4.2010 appears to be legally correct and cannot be interfered with. 22. Accordingly, in view of the aforesaid discussion and critical examination of the material available on record, we have no hesitation to conclude that orders dated 3.6.2001, 3.4.2007 and 20.4.2010, passed by the competent authorities as envisaged under the Act, are based upon correct appreciation of documentary evidence available on record and same, in no manner, can be termed to be illegal, unjust and arbitrary. Rather, after perusing the material available on record, this Court is compelled to draw an adverse inference against the conduct of petitioner, who admittedly failed to discharge his duties with utmost devotion and honesty and as such decision of the respondents in terminating his services in public interest is liable to be upheld. 23. In view of aforesaid discussion, we do not find any illegality and infirmity in the impugned judgment passed by the learned Single Judge, as such the same is upheld and the appeal is dismissed alongwith pending application, if any.