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2018 DIGILAW 1782 (ALL)

Raja Bahiya Singh v. State of U. P.

2018-08-13

SANGEETA CHANDRA

body2018
JUDGMENT : 1. This writ petition has been filed by the petitioner who is a workman as Secretary of a Primary Agricultural Credit Cooperative Society (herein after to referred as "PACCS) at Vikas Khand Narayani, Banda challenging the order of suspension issued by Member Secretary of the District Administrative Committee. 2. It has been contended that the Member Secretary, District Administrative Committee could not have passed such an order of suspension as the charges levelled against the petitioner do not warrant major penalty as the charges relate to the absence from duty and not taking interest in recovery proceedings. The suspension order has been passed in contemplation of an inquiry. 3. It is the settled law that a suspension order is not a punishment order but it does have a tendency to place the employee concerned under undue financial hardship. 4. In response to the preliminary objection raised by Shri Sujeet Kumar Rai regarding the statutory remedy of appeal in Primary Agricultural Co-operative Credit Societies Centralized Service Rules, 1976 Sub-Rule 10 of Rule 8 (1), the counsel for petitioner has submitted that under Rule 30 the State Cadre Authority can frame regulations with prior approval of the Registrar, Cooperative Societies for the members of the Centralized Service on their service matters relating to appointment, probation, promotion, confirmation, seniority, reversion, retrenchment, resignation, termination, pay scale and allowances and other conditions of the service including the conduct of disciplinary proceedings and appeals. Under such a power granted by the Rules the State Cadre Authority has framed U.P. Primary Agricultural Cooperative Credit Society Centralized Service Regulation 1978. The provision of appeal has been given under Regulation 60 and it relates to punishment orders only; for example, censure, stoppage of increment, recovery of pecuniary loss from pay, reduction in rank or grade, removal and dismissal. Suspension order being not a punishment order is not an appeal-able order under the Regulation. 5. Shri Sujit Kumar Rai, however, disputes such an argument and says that since the Rules of 1976 gave the Cadre Authority power to hear appeal from any orders passed by the District Administrative Committee, it would include the power to hear appeal against a suspension order also. 6. 5. Shri Sujit Kumar Rai, however, disputes such an argument and says that since the Rules of 1976 gave the Cadre Authority power to hear appeal from any orders passed by the District Administrative Committee, it would include the power to hear appeal against a suspension order also. 6. This Court is of the considered opinion that the preliminary objection raised by Shri Sujit Kumar Rai regarding the maintainability of an appeal against an order of suspension and such statutory remedy not being availed of no writ petition would lie, is legally untenable and is liable to be rejected. 7. The legal infirmity in such an argument can be seen from the language of the Rule -6 "Powers of the Authority" under Centralized Service Rules, 1976 which relates to the power and duty of the State Cadre Authority. It states that the State Cadre Authority shall be the chief policy making body for centralized service and powers, duties and responsibilities are enumerated in Rule 8 which mainly relate to policy issues. If the District Administrative Committee takes a decision which is contrary to the policy laid down by the State Cadre Authority, the order can be challenged even though it is not an order passed in disciplinary proceedings against an employee. 8. However, if there is a specific provision given in the Regulations framed under Rule 30 by the State Cadre Authority, the specific will rule out the general. 9. In Maru Ram Vs. Union of India 1981 (1) SCC 107 the Constitution Bench of the Hon'ble Supreme Court has considered the law with regard to the special statutes prevailing over the general statutes and also the specific provisions in general statute prevailing over the general provisions made in special statute. Therefore, the preliminary objection raised by Shri Sujit Kumar Rai is rejected. 10. On merits of the case, the learned counsel for the petitioner has pointed out that the petitioner's wife was ill and had been diagnosed with tumor in the neck, and therefore he had to get her operated for which he made an application for leave to the Chairman of the Society, and such leave application was also entertained and allowed by the Chairman, giving sanctioning leave to the petitioner w.e.f. 9.6.2018 to 18.6.2018. It was during this time when the petitioner was on leave attending his ailing wife that the District Administrative Committee and the member Secretary came to a conclusion that the petitioner is not taking sufficient interest in the work of recovery of loans extended to the members. 11. Learned counsel for the petitioner has pointed out that reporting back from leave, the petitioner has been actively pursing recovery operations as is required of him. However, on 26.6.2018, the member Secretary of District Administrative Committee had passed an order saying that the petitioner is not taking sufficient interest in recovery proceedings and has remained unauthorisedly absent and in case the recovery target is not met by the petitioner by 13.6.2018, then in disciplinary proceedings shall be initiated against him w.e.f. 1.7.2018, and he shall be suspended. 12. After this conditional order was passed, another order was passed, this time on 17.7.2018, referring to a decision taken by the District Administrative Committee on 7.7.2018 for initiation of discpliniary proceedings against the petitioner on the very same charges of not taking sufficient interest in the recovery proceedings. 13. Learned counsel for the petitioner has submitted that the charges proposed to be inquired upon are not of such serious nature as would warrant major penalty even if they are proved. The leave had been sanctioned to him by the Chairman of the Cooperative Society as is evident from the papers filed as Annexures to the writ petition. 14. Sri Sujeet Kumar Rai has argued that the Chairman had no authority in law to sanction such leave as it is only the District Administrative Committee which has disciplinary control over an employee, like the petitioner who is a cadre Secretary. 15. Learned counsel for the petitioner in rejoinder has submitted that under the Regulations of 1978, the power to sanction casual leave rests with the Chairman of the Society. With regard to other kinds of leave, the member Secretary of the District Administrative Committee is entitled to pass an order. The petitioner had applied for casual leave which was granted by the Chairman. 16. Looking into the facts of this particular case, the suspension order dated 17.7.2018 is kept in abeyance as also the order dated 26.6.2018. 17. The writ petition is disposed of with a direction to the petitioner to file a detailed representation to the District Administrative Committee. The petitioner had applied for casual leave which was granted by the Chairman. 16. Looking into the facts of this particular case, the suspension order dated 17.7.2018 is kept in abeyance as also the order dated 26.6.2018. 17. The writ petition is disposed of with a direction to the petitioner to file a detailed representation to the District Administrative Committee. The member Secretary shall ensure the placement of such representation before the District Administrative Committee which shall consider the same and pass an appropriate order in accordance with law. 18. The petitioner shall make such representation within two weeks from today. The member Secretary shall place the same before the District Administrative Committee within a further period of one week. The District Administrative Committee shall consider the same and pass appropriate order thereon within a further period of two weeks. 19. For a period of four weeks or till such decision is taken by the District Administrative Committee considering the representation of the petitioner, the suspension order shall remain in abeyance. 20. The writ petition is disposed of.