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2022 DIGILAW 1772 (ALL)

Anand Kumar Singh v. State Of U. P.

2022-11-11

SANGEETA CHANDRA

body2022
JUDGMENT : 1. Heard Sri H.R. Mishra, learned Senior Advocate assisted by Sri Chandra Bhan Gupta, learned counsel for the petitioner and Sri Jai Bahadur Singh, learned counsel appearing on behalf of the respondent nos.2 to 4 and the learned Standing Counsel appearing on behalf of the respondent nos.1 and 5. 2. This petition has been filed praying for a direction to be issued to the respondent no. 3, Secretary and Chief Executive Officer, District Cooperative Bank Limited, Fatehpur to make payment of salary to the petitioner as per order dated 23.10.2021 passed by the Deputy Commissioner and Deputy Registrar (Cooperative), Prayagraj Division, Prayagraj along with admissible interest thereon. 3. It is the case of the petitioner that he was posted as Branch Manager in District Cooperative Bank Ltd., Fatehpur (hereinafter referred to as ‘the Bank’). He was placed under suspension on 28.03.2017. The petitioner filed a writ petition, namely, Writ A No.9280 of 2020 for reinstatement and revocation of suspension order and conclusion of the disciplinary proceedings which had been going on for a long time. The Court finally disposed of the petition on 04.11.2020 by referring to Regulation 85(x) of U.P. Co-operative Societies Employees’ Service Regulations, 1975 (hereinafter referred to as ‘the Regulations, 1975’) that no employee shall ordinarily remain under suspension for more than 6 months except when suspension is made on a criminal charge on the direction of the competent Court; by observing that appropriate orders be passed by the competent Authority to conclude the matter of disciplinary proceedings within a period of 30 days from the date of order, failing which, the order of suspension shall stand revoked and the petitioner would be entitled to reinstatement and payment of salary. 4. In pursuance of the said order passed by this Court on 04.11.2020, the Committee of Management by its order dated 25.11.2020, had taken a decision to conclude the disciplinary proceedings and to reinstate the petitioner treating his suspension period as period spent on duty with a punishment of stoppage of 3 increments with cumulative effect. No salary/subsistence allowance was to be paid to the petitioner for the period in which he remained suspended. In pursuance of the decision of the Committee of Management dated 25.11.2020, the responded no.3 passed an order on 15.12.2020 and the petitioner joined his services. He however was retired on 31.01.2021. No salary/subsistence allowance was to be paid to the petitioner for the period in which he remained suspended. In pursuance of the decision of the Committee of Management dated 25.11.2020, the responded no.3 passed an order on 15.12.2020 and the petitioner joined his services. He however was retired on 31.01.2021. In pursuance of the impugned order, the petitioner was suffering financially and therefore, he filed Writ A No.853 of 2021 challenging the order dated 15.12.2020 and prayed for payment of salary during the suspension period. This Court disposed of the writ petition on 25.01.2021 on the grounds of remedy of filing an appeal under Regulation 86 of the Regulations, 1975. The Court also directed that in the event, the petitioner preferred an appeal before the appropriate forum, the same would be entertained on merits and dealt with in accordance with law, expeditiously. 5. After that order, the petitioner preferred an appeal. A copy of which has been filed as Annexure-1 to the supplementary affidavit filed by the petitioner on 03.11.2022. The said appeal was preferred to the Joint Commissioner and Joint Registrar Cooperative, Prayagraj Mandal wherein the petitioner prayed that he may be given his balance emoluments as the period of suspension has already been treated by the employer to be period spent on duty and the disciplinary proceedings have concluded with no punishment. According to Sub-clause 7(a) of Regulation No. 85 of the Regulations, 1975, service rules as applicable to the State Government employees would be applicable to employees of Cooperative Society and under the U.P. Government Servant Service Rules and Financial Handbook, subsistence allowance at 75% of the basic salary is payable to an employee who remained under suspension beyond 6 months. In the case of the petitioner, he had remained under suspension for 3 years but was only paid half of basic salary as subsistence allowance. He ought to have been paid 75% i.e. 3/4 of the basic salary from the date of lapse of 6 months from the date of his suspension instead the Appointing Authority had directed withholding of all allowances and balance of salary during the period the petitioner remained under suspension. The appeal was decided by Deputy Registrar and Deputy Commissioner Cooperative, Prayagraj Mandal by order dated 23.10.2021. A copy of such order has been filed as Annexure-4 to the writ petition. The appeal was decided by Deputy Registrar and Deputy Commissioner Cooperative, Prayagraj Mandal by order dated 23.10.2021. A copy of such order has been filed as Annexure-4 to the writ petition. The Appellate Authority set aside the order dated 15.12.2020 passed by the respondent no.3. The petitioner was reinstated and he retired on 31.01.2021. However his retiral dues as well as his salary adjusting his subsistence allowance that were already paid to him, was not being given and therefore, the petitioner filed the instant petition. 6. When the matter was taken up earlier by this Court, Sri Jai Bahadur Singh, learned counsel had appeared and this Court had passed a detailed order on 08.07.2022 which is being quoted hereinbelow:- “Learned counsel for the petitioner is permitted to implead the Deputy Commissioner & Deputy Registrar Co-operative, U.P. Prayagraj, Division, Prayagraj as respondent no. 5 during the course of day. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no. 1 and Sri Jai Bahadur Singh, learned counsel for the respondent nos. 2 to 5. Learned counsel for the petitioner submitted that earlier petitioner was working as Branch Manager in District Co-operative Bank Limited, Fatehpur. Thereafter, inquiry has been initiated against the petitioner and punishment of stopping three increments have been awarded to the petitioner vide order dated 15.12.2020. Against which, petitioner has approached this Court by filing Writ- A No. 853 of 2021, which was dismissed vide order dated 25.1.2021 on the ground of alternative remedy to file appeal. Accordingly, petitioner has preferred appeal before the Deputy Commissioner and Deputy Registrar Co-operative, U.P. Prayagraj, Division, Prayagraj-respondent no.5 in which respondent no.2 has appeared and ultimately appeal was decided in favour of him rejecting the penalty so earlier imposed upon him vide order dated 23.10.2021. He next submitted that the said order was never challenged before any Court of law. Further, respondent no.3 is not complying the order dated 23.10.2021. Sri Jai Bahadur Singh, learned counsel for the respondent nos. 2 to 5 could not dispute the argument of learned counsel for the petitioner, but submitted that order is without jurisdiction, therefore, same may not be complied with. Further, respondent no.3 is not complying the order dated 23.10.2021. Sri Jai Bahadur Singh, learned counsel for the respondent nos. 2 to 5 could not dispute the argument of learned counsel for the petitioner, but submitted that order is without jurisdiction, therefore, same may not be complied with. Learned counsel for the petitioner in his rejoinder argument submitted that objection so taken before this Court has never been raised by the respondent-Bank before the Appellate Authority and also not challenge the said order before any Court of law, therefore, he cannot be given any liberty to raise this objection. Once order has not been challenged before any Competent Court, that has attained finality and respondents are bound to comply the same. Under such facts and circumstances, let an interim mandamus be issued to respondent no.3 to comply the order dated 23.10.2021 within six weeks or show cause by filing affidavit within the same time. Put up this case as fresh on 22.8.2022.” 7. In compliance of the order passed by this Court, a short counter affidavit was filed by Sri Jai Bahadur Singh raising certain objections to the jurisdiction of the Deputy Registrar and Deputy Commissioner (Cooperative), Prayagraj Mandal to decide the appeal. The matter thereafter was taken up on 19.09.2022. This Court noted the arguments made on the basis of said short counter affidavit by Sri Jai Bahadur Singh that order dated 23.10.2021 was without jurisdiction. The petitioner should have approached the UP Cooperative Societies Service Institutional Board (hereinafter referred to as ‘the Board’) against order of punishment but he had approached an incompetent Authority that is the respondent no.5, who without jurisdiction passed the order dated 23.10.2021. When the order dated 23.10.2021 was placed before the District Administrative Committee, it had again passed a resolution on 25.04.2022 affirming its earlier resolution dated 25.11.2020 which had resolved that the suspension period shall be treated as period spent on duty but without payment of any other allowance except for subsistence allowance to the petitioner. 8. When the matter was taken up today before this Court, Sri Jai Bahadur Singh has pointed out the Regulation No. 84 of the Regulations, 1975 which relates to penalty. Regulation No.84 is being quoted hereinbelow:- “84. 8. When the matter was taken up today before this Court, Sri Jai Bahadur Singh has pointed out the Regulation No. 84 of the Regulations, 1975 which relates to penalty. Regulation No.84 is being quoted hereinbelow:- “84. Penalties.- (i) Without prejudice to the provisions contained in any other regulation, an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under section 103 of the Act or does anything prohibited by these regulations shall be liable to be punished by any one of the following penalties: - (a) censure, (b) with holding of increment, (c) fine on an employee of Category IV (peon, chaukidar, etc.). (d) recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the cooperative society by the employee's conduct, (e) reduction in rank or grades held substantively by the employee, (f) removal from service, or (g) dismissal from service. (2) Copy of order of the punishment shall invariably be given to the employee concerned and entry to this effect shall be made in the service record of the employee. (3) No penalty except censure shall be imposed unless a show cause notice has been given to the employee and he has either failed to reply within the specified time or his reply has been found to be unsatisfactory by the punishing authority. (4) (a) The charge-sheeted employee shall be awarded punishment by the appropriate authority according to the seriousness of the offence: Provided that no penalty under sub-clause (e), (f) or (g) of clause (i) shall be imposed without recourse to disciplinary proceedings. (b) No employee shall be removed or dismissed by an authority other than by which he was appointed unless the appointing authority has made prior delegation of such authority to such other person or authority in writing. (5) The appointing authority or person authorised by him while passing orders for stoppage of increments shall state the period for which it is stopped and whether it shall have effect of postponing future increments or promotion.” 9. It has been argued that penalties given in clauses (a) to (d) of the Regulation No.84(1), the appeal is maintainable before the Board as they come under minor penalty. It has been argued that penalties given in clauses (a) to (d) of the Regulation No.84(1), the appeal is maintainable before the Board as they come under minor penalty. Clauses (e) to (g) relate to reduction of rank or grade, removal from service or dismissal from service, no appeal is provided under the Regulation, major penalties having being provided subject to approval of the Board, no appeal can be made to any of the officers and perhaps extraordinary jurisdiction under Article 226 of the Constitution alone can be availed of by the aggrieved person. 10. Sri Jai Bahadur Singh, learned counsel says that since stoppage of an increment is a minor penalty, appeal should have been preferred by the petitioner to the Board which was not done by the petitioner. He approached the Deputy Registrar/ Joint Registrar (Cooperative) in appeal. He has referred to a judgement rendered by a Coordinate bench of this Court in Committee of Management, Krishna Sahkari Awas Samiti Limited and others Vs. State of U.P. and others, [2022 (3) ADJ 110] wherein it had been argued by learned counsel for the petitioner- Committee of Management that the order passed by the Joint Secretary Cooperative under Section 98(n) of the U.P. Co-operative Societies Act, 1965 (hereinafter referred to as ‘the 1965, Act’) as Appellate Authority was without jurisdiction. Failure to raise the issue of jurisdiction at the stage of appeal by the Committee of Management, did not preclude the petitioner from canvassing the same before the Court as the issue of jurisdiction goes to the root of the matter. This Court had considered the Section 98(n) of the Act, 1965 and found that the order which was appealed, did not fall within the ambit of Section 98(n) of the Act, 1965 and therefore, the Appellate Authority could not annul any resolution nor cancel any order passed by the Committee of Management. Appeal being creature of the statute scope of the Appellate jurisdiction is defined and circumscribed by the statute. The Appellate Authority could not go beyond the statutory mandate of Section 98(n) of the Act, 1965. The Court observed that consent of parties would not confer the jurisdiction of appeal where none had been vested by law. Appeal being creature of the statute scope of the Appellate jurisdiction is defined and circumscribed by the statute. The Appellate Authority could not go beyond the statutory mandate of Section 98(n) of the Act, 1965. The Court observed that consent of parties would not confer the jurisdiction of appeal where none had been vested by law. Similarly, failure to raise the objection in regard to the jurisdiction to entertain the appeal, will not cure the defect of inherent lack of jurisdiction and such plea can be raised at any stage and also in collateral proceedings. 11. The Supreme Court’s judgement in Kiran Singh and others Vs. Chaman Paswan and others [ (1955) 1 SCR 117 ] as reiterated in Hindustan Zinc Limited Vs. Ajmer Vidyut Vitran Nigam Limited [ (2019) 17 SCC 82 ] was quoted by the coordinate Bench as also the judgement rendered in Zuari Cement Limited Vs. Regional Director, Employees’ State Insurance Corporation, Hyderabad and others [ (2015) 7 SCC 690 ]. 12. Learned counsel for petitioner has referred a Division Bench judgement of this Court in Nand Kishor Vs. State of U.P. and others (Civil Misc. Writ Petition No.43584 of 2007 decided on 14.09.2007) wherein this Court was considered an order of punishment passed by the Managing Director which the writ petitioner Nand Kishor had challenged in appeal under Regulation No.86 of the Regulation, 1975. The appeal was dismissed by the Chairman. The petitioner approached the Registrar challenging the orders of the Managing Director as well as the Chairman under Section 128 of the Act, 1965. The appeal was rejected by the Joint Registrar as not being maintainable. The writ petitioner had argued before this Court that the appeal was maintainable under Section 128 of the Act, 1965 as the Board constituted under Section 122 of the Act, 1965 had framed the Regulations of 1975 and appeal to the Chairman against the order of Managing Director had been provided for. After decision in the appeal by the Chairman, in exercise of powers under Regulation No.86 of the Regulations, 1975, such order could be challenged under Section 128 of the Act, 1965 as the Act contemplates that all orders passed by the Cooperative Societies, can be cancelled in the cases provided for under the section by the Registrar. After decision in the appeal by the Chairman, in exercise of powers under Regulation No.86 of the Regulations, 1975, such order could be challenged under Section 128 of the Act, 1965 as the Act contemplates that all orders passed by the Cooperative Societies, can be cancelled in the cases provided for under the section by the Registrar. The Court observed that remedy under Section 128 of the Act, 1965 is available to an employee who is aggrieved by the order of Chairman passed in appeal as the power conferred upon the Registrar under Section 128 of the Act i.e. parent legislation is not diluted in any manner by the Regulations, 1975 framed by the Board which are in nature of subordinate legislation as reference may also be had to the definition of ‘Officer’ as contained in Section 2-O of the Act which refers to the Chairman of the Board. The appeal/application made by the petitioner under Section 128 of the Act, 1965 was legally maintainable. The Court referred to another Division Bench judgement rendered in Ram Nath Pandey Vs. Zila Sahkari Bank Ltd. Basti and others (Writ Petition No.16188 of 2002, decided on 03.10.2002) reiterated the position. 13. It has been argued by learned counsel for the petitioner that even if an order was passed by the Secretory/Chief Executive Officer in compliance of the resolution passed by the Board as in the case of the petitioner, remedy would still alive under Section 128 before the Registrar/Joint Registrar/Deputy Registrar. Hence the appeal filed by the petitioner was maintainable. 14. This Court is not convinced as in the case of the petitioner, the punishment was determined by the Committee of Management and consequential order alone was passed by the Secretary/Chief Executive Officer of the Cooperative Society. 15. This Court has now to consider whether the order passed on 15.12.2020 concluding the disciplinary proceedings of the petitioner by observing that the suspension period shall be treated as period spent on duty without any other allowance being payable to the petitioner except subsistence allowance for the said period and also imposing punishment of withholding of 3 annual increments was a major or minor penalty. 16. 16. It is the case of the respondent that it was a minor penalty and the petitioner ought to have approached the Board under Regulation No.86 which provides that order imposing penalty under Sub-clause (a) to (d) of Clause 1 of Regulation No.84 shall be appealable to the Authorities as mentioned in Appendix D and Appendix D mentions first appeal to be made to the Committee of Management or any other officer authorized by the Committee of Management and in case the Committee of Management has passed the order of punishment, appeal shall file to the Board i.e. Cooperative Societies Service Institutional Board. 17. It is the case of the respondent that the petitioner should have approached the Cooperative Societies Service Institutional Board as the order passed under Regulation No.84 was only for withholding of increments. 18. Learned counsel for the petitioner has argued that in case of the petitioner, withholding of 3 annual increments was with future effect and that would amount to a major penalty when no appeal would lie to the Board and in case where no appeal shall lie to the Board, Section 128 would come into play and the Registrar can be approached. 19. Since the punishment order had directed withholding of 3 annual increments would have fallen due only with effect from July of the year 2021, the punishment that was imposed, was a minor penalty and the petitioner ought to have approached the Board. This Court finds that since withholding of increments is a punishment mentioned under Sub-clause (b) of Regulation No. 84, it is a minor penalty and the petitioner should have approached the Board. He wrongly filed an appeal before the Registrar/Joint Registrar/Deputy Registrar. The appeal filed by the petitioner on 06.02.2021 shall be treated as non-est. 20. The writ petition is disposed of with a liberty to the petitioner to file an appeal before the Cooperative Societies Service Institutional Board against the resolution dated 25.11.2020 and the resolution dated 25.04.2022. If an appeal is preferred before the Board by the petitioner within a period of three weeks from today, it shall be considered on its merits and in accordance with law as expeditiously as possible, within a period of three months from the date a copy of the appeal and a copy of this order is produced before it. 21. If an appeal is preferred before the Board by the petitioner within a period of three weeks from today, it shall be considered on its merits and in accordance with law as expeditiously as possible, within a period of three months from the date a copy of the appeal and a copy of this order is produced before it. 21. A copy of the resolution dated 25.11.2020 and a copy of the resolution dated 25.04.2022 shall be served upon the petitioner within a week from its application made in this regard by the respondent no.3.