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Allahabad High Court · body

2024 DIGILAW 1741 (ALL)

Anwar Shafiq Khan v. State of U. P.

2024-07-25

AJIT KUMAR

body2024
JUDGMENT : Hon'ble Ajit Kumar, J.-Heard Shri Gulrez Khan, learned counsel for the petitioner, Shri Abhishek Mishra, learned Advocate appearing for respondents No. 2 to 4 and learned Standing Counsel appearing for respondents No. 1 and 5. 2. Petitioner before this Court is aggrieved by the order of punishment which is in the nature of dismissal from service of the petitioner from the Cooperative Society concerned. This order was passed on 5.1.2011 holding the petitioner to be guilty for remaining absent from duty without leave. Thus, petitioner has been found guilty of misconduct by virtue of his unauthorized absence from duty, accordingly, as the order impugned says, petitioner was proceeded with under the relevant regulations, namely U.P. Cooperative Society Employees Service Regulations, 1975 to impose the appropriate penalty/punishment as prescribed for under Regulation 84 of the said Regulations. It is recorded in the impugned order that the U.P. Cooperative Institutional Service Board, Lucknow had accorded its approval/concurrence to the proposed action dismissing the petitioner from service while he was absent from service. At the time of punishment petitioner was working as Clerk cum Cashier with the Co-operative Society in its branch at Ghatampur. 3. The argument advanced by learned counsel appearing for the petitioner is that any penalty which is of removal/dismissal from service as prescribed for under Regulation 84, would be imposed only by following procedure prescribed for under Regulation 85 and the concurrence/approval of the Board under Regulation 87. He submits that the penalty of removal from service and dismissal from service are prescribed under sub-clauses F and G of clause-1 to Regulation 84. 4. It is argued that Institutional Service Board did not accord its concurrence or approval as contemplated under Regulation 87, instead misinterpreting the provisions as contained under Regulation 84(1) the Institutional Service Board, it is argued, has completely misconstrued the said provision and has further confused it with Regulation 84 (2) (d) of the 1975 Regulations. 5. It is argued on behalf of the petitioner by Shri Khan that provisions as contained under Regulation 84 only prescribed for punishment and penalties whereas Regulation 85 prescribed for disciplinary proceedings to be drawn and the procedure for conducting such disciplinary proceedings but Regulation 87 puts a fetter upon the power of the Society in inflicting punishment in the nature of removal or dismissal from service without seeking concurrence/approval of the Institutional Service Board. He argues that the provisions as contained under Regulation 85 (2) (b) only entitle the competent authority to proceed in a summary manner in the event an employee is found to be absconding from duty and to that extent there will be no quarrel about the procedure adopted, but upon the question of competence to impose punishment, it would be a consequential order to the disciplinary proceedings drawn. Regulation 87 is quite specific and unequivocal in the terminology used in prescribing powers of the committee. It is thus, submitted that the order passed by the competent authority/disciplinary authority is absolutely unsustainable. 6. Shri Abhishek Mishra, learned Advocate, on the contrary has sought to urge that looking to the language of Regulation 85 (2) (b), as contained under the Regulation, 1975, it is clear that this regulation is an exception to what is contained under Regulation 85(1). He has argued that if the employee himself has absconded and has not been reporting to duty, this would be akin to abandonment of service and would, therefore, not cast any obligation upon the disciplinary authority to hold regular enquiry and since there was an indictment of petitoner under a regular enquiry, the competent authority would be taken to have sufficient power and competence to dismiss such an employee from service. In such circumstances, the provisions as contained under Regulation 87 would not come into play. Shri Mishra has tried to defend the decision taken by the Institutional Service Board dated 5.1.2011 and argues that if the Institutional Service Board expressed that no approval was required then it should be taken to be a deemed approval. Thus, according to him, the order of punishment cannot be faulted with so as to set it aside. 7. Having heard learned counsel for the respective parties and having perused the records, I find the only legal aspect to be addressed by the Court is as to whether provisions as contained under Regulation 84 are independent of Regulation 85 (1) (b) and are to be read in harmony with Regulation 87 and so also Regulation 85 (2) (d) and Regulation 87 are to be given harmonious construction so as to make the power of the competent authority in the matter of imposition of major penalty like removal or dismissal from service to be always with the concurrence of the Institutional Service Board. There is no quarrel between the learned Advocates regarding provisions as contained under Regulation 84 prescribing punishment vide its sub-clause F and G and Regulation 87 that puts fetter upon the absolute power of competent authority/disciplinary authority to remove or dismiss an employee from employment making concurrence of the Institutional Service Board to be obligatory and compulsory. In between the two regulations the only contentious issue is whether Regulation 85 (2) (b) is to be read independent of Regulation 87 or in aid to regulation itself. The relevant provision as contained in Regulation 85 are reproduced hereinbelow in their entirety: ''85. [Disciplinary proceedings. [Substituted by Notification No. 4738/12-C-2-151(5)-83, dated 13th December, 1993.] -(i) The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer [referred to in clause (iv) below] with due observance of the principles of natural justice for which it shall be necessary- (a) The employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges withing reasonable time which shall not be less than fifteen days; (b) Such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires; (c) If no such explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary. (ii) (a) Where an employee is dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge; or (b) Where the employee has absconded and his whereabouts are not known to the society for more than three months; or (c) Where the employee refused or fails without sufficient cause to appear before the Inquiring Officer when specifically called upon in writing to appear; or (d) Where it is otherwise (for reasons to be recorded) not possible to communicate with him, the competent authority may award appropriate punishment without taking or continuing disciplinary proceedings. (iii) Disciplinary proceedings shall be taken by the society against the employee on a report made to this effect by the inspecting authority or an officer of the society under whose control the employee is working. (iii) Disciplinary proceedings shall be taken by the society against the employee on a report made to this effect by the inspecting authority or an officer of the society under whose control the employee is working. (iv) The inquiring officer shall be appointed by the appointing authority or by an officer of the society authorized for the purpose by the appointing authority: Provided that the officer at whose instance disciplinary action was started shall not be appointed as an inquiring officer nor shall the inquiring officer be the appellate authority. (v) In the case of an erring employee falling in sub-section (c) or clause (i) or sub-clause (a) of clause (ii) of Regulation No. 5, the committee of management of the society, and if so provided in the bye-laws, the Chairman or the Secretary of the society, shall draw up a duplicate charge-sheet against the employee and the same shall be communicated to the parent employer who shall, if prima facie case has been made out by the reporting authority, withdraw him from the society and take disciplinary action against him. (vi) An employee other than one referred to in clause (v) may be placed under suspension in the following circumstances by the appointing authority or any other officer authorised for the purpose; (a) When the said authority is satisfied that prima facie case exists, which is likely to result in the removal, dismissal or reduction in rank of the employee. (b) When an enquiry into his conduct is immediately contemplated or is pending and his further continuance on his post is considered detrimental to the interest of the society. (c) When a complaint against him of any criminal offence is under police investigation for which he has been arrested or he is undergoing trial in a Court of law or the offence under the Indian Penal Code, U.P. Co-operative Societies Act, 1965 or any other Act or charges have been framed against him by criminal Court: Provided that suspension shall be obligatory where it is called for in terms of clause (i) of Regulation No. 83. (vii) (a) An employee under suspension shall be entitled to a subsistence allowance as per relevant rules applicable to the State Government employees from time to time. (vii) (a) An employee under suspension shall be entitled to a subsistence allowance as per relevant rules applicable to the State Government employees from time to time. Provided that an employee who is under suspension on the date of coming into force of these regulations shall continue to draw such portion of pay and such allowances as he was allowed to draw fro the period of suspension: Provided further that n payment of the subsistence allowance shall be made unless the employee has furnished a certificate, and the authority passing the order of suspension is satisfied that the employee was not engaged in any other employment, business, profession or vocation and had not earned remuneration therefore during the period under suspension. (b) (1) When an employee is reinstated, the authority competent to order the reinstatement shall made specific order regarding pay ad allowances to be paid for the period spent on duty: Provided that where the authority passing the order of reinstatement is of the opinion that the employee has been fully exonerated or the suspension was wholly unjustified, the employee shall be given the full pay and allowances to which he would have been entitled had he not been suspended. (2) In cases not covered by the proviso to foregoing sub-clause (I) the employee shall be given such promotion of pay and allowance as the competent authority may order. (d) In cases falling under proviso to clause (I) the period of suspension shall be treated as a period spent on duty for all purposes. (e) in cases falling under clause (c) (2) the period of suspension shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated. (f) The order of suspension shall not take retrospective effect. (g) Leave shall not be granted to an employee under suspension. (e) in cases falling under clause (c) (2) the period of suspension shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated. (f) The order of suspension shall not take retrospective effect. (g) Leave shall not be granted to an employee under suspension. (h) An employee against whom proceedings have been taken either for his arrest for debts or a criminal charge or who is detained under any law for preventive detention shall be consider as under suspension for the period during which he is so detained in custody or is undergoing imprisonment and not be allowed any pay and allowances other than the subsistence allowance admissible under sub-clauses (a) and (b) for such period until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty as the case may be. (viii) In case of fine, the total amount of fine shall not exceed half months pay or maximum fine, chargeable under the Payment of Wages Act, 1936, where this Act is applicable to the employee concerned and it shall be deducted from his pay in monthly instalments, each such instalment not exceeding one-fourth of his monthly salary. (ix) The order of suspension may be revoked by- (a) The authority which passed the orders, or (b) The appointing authority, if there are sufficient reasons for revocation and the same shall be recorded in the order of revocation. (x) No employee shall ordinarily remain under suspension for more than 6 months: Provided that this condition shall not apply to such cases where the suspension is made on criminal charge on the direction of the Court]. (xi) [Rules regarding disciplinary proceedings after retirement applicable for the employees of the State Government, shall also be applicable for the employees of the Co-operative Society with modification form time to time [Inserted by Notification No. 1425/XLIX-2-2018-5(419)-2017, dated 27.8.2018 (w.e.f. 31-12-1975).] Explanation.-For the purpose of this sub-rules, the word ''Governor'' has been used under the rules of the State Government, the word ''Registrar'' shall be deemd to be substituted. (xii) if an employee retires from the service while disciplinary proceedings against him is already in operation, the disciplinary proceeding will continue after his retirement.''].'' (emphasis added) 8. (xii) if an employee retires from the service while disciplinary proceedings against him is already in operation, the disciplinary proceeding will continue after his retirement.''].'' (emphasis added) 8. From a bare reading of the Clause (i) of the Regulation 85, it is clear that the intendment behind framing the relevant clause has been that no disciplinary proceeding should be drawn without due observance of the principle of natural justice. Proviso to Regulation 84 in the matter of major penalty of reduction in rank, removal from service or dismissal from service, makes disciplinary proceedings to be compulsory. The sub-clauses a, b and c prescribe for a detailed procedure for holding such enquiry, however, Clauses ii (a) and ii (b) do not contemplate for such detailed procedures to be followed in the matter of conviction in a criminal case or where the employee has absconded and his where-about are not known. The law is well-settled that in the matter of conviction in a criminal case, the disciplinary authority has to apply its mind looking to the charges of conviction and whether they lead to moral turpitude so as to remove or dismiss the employee from service. This has been so held in the case of Ashok Kumar Pandey v. State of U.P and others, 2024(5) ADJ 538 . Thus, the disciplinary authority has to apply its mind and after application of mind it has to pass order in accordance with law and as per the procedure prescribed. 9. Likewise in the matter of an employee absconding from service where a detailed enquiry may not be required but there has to be some enquiry or summary enquiry to arrive at a conclusion that such an employee needs to be removed from employment. 10. On the touchstone of these two principles as discussed above, regulations ii (a) and ii (b) are to the read only as an exception to Regulation 85 (i) and not to be read as exception to Regulation 87. Regulation 87 is reproduced hereunder: ''87. Order imposing penalty under sub-clauses (a) to (d) of clause (1) of Regulation No. 84 shall not be passed except with the prior concurrence of the Board.'' 11. Regulation 87 does not prescribe any procedure for holding enquiry nor prescribes any procedure for imposing penalty. Penalty are to be imposed under Regulation 84. Regulation 87 is reproduced hereunder: ''87. Order imposing penalty under sub-clauses (a) to (d) of clause (1) of Regulation No. 84 shall not be passed except with the prior concurrence of the Board.'' 11. Regulation 87 does not prescribe any procedure for holding enquiry nor prescribes any procedure for imposing penalty. Penalty are to be imposed under Regulation 84. Thus, a conjoint reading of Regulations 84, 85 ii (a) and (b) and Regulation 87 is required to reached to a natural conclusion that in cases as enumerated in Rule ii (a) and (b) and Regulation 85 (i) a major penalty is sine qua non. Of course, if the major penalty can be imposed, such imposition of penalty has to be always in concurrence with, and the approval of the Institutional Service Board vide Regulation 87. Thus, the concurrence/prior approval, as it may be called, as contemplated in Regulation of the Institutional Service Board in matters of major penalty of dismissal or removal is a sine qua non. 12. Learned Advocate appearing for the petitioner has placed reliance upon three judgments of co-ordinate Benches of this Court in the matter of Govind Narayan Shukla v. State of U.P. and others, 2005(1) ESC 555 (All); Vijay Shanker Rai v. State of U.P and others, Civil Misc. Writ Petition No. 43327 of 2003 and Virendra Kumar Srivastava v. The Managing Director and others, Writ A No. 22414 of 1996 in which Regulation 85 ii (b) has come to be interpreted and it has been held that the power to dismiss or remove from service would always be in concurrence with the decision of the Institutional Service Board and in exercise of power without there being any concurrence or approval of the Institutional Service Board would render the order unsustainable. 13. Mr. Mishra, appearing for the respondents could not show any law to the contrary. 14. The Institutional Service Board misconstrued and misinterpreted the relevant provisions as contained under Regulation 85 ii (b) and Regulation 87 of the Regulation, 1975 in refusing to exercise power to grant concurrence/approval to the proposed termination order. It is also held that the order of the Institutional Service Board cannot be interpreted as deemed concurrence to the proposal of termination or dismissal from services of the petitioner. 15. It is also held that the order of the Institutional Service Board cannot be interpreted as deemed concurrence to the proposal of termination or dismissal from services of the petitioner. 15. In view of the above, the order impugned passed by authority, namely the Secretary District Cooperative Bank Ltd. Lucknow dated 5.1.2011 is held to be absolutely unsustainable. 16. In the normal circumstances the matter would have been remanded to the discretion of the disciplinary authority to seek concurrence in the matter but since the petitioner has already retired in June, 2011 and he ceased to be an employee of the respondents, therefore, there is no question now to remand the matter. 17. Accordingly, writ petition succeeds and is allowed. The orders dated 5.1.2011, 29.3.2019 are hereby quashed. Since I have set aside both the orders, the resolution dated 29.5.2009, as a consequence of which the orders passed by the Secretary, is also hereby quashed. Consequence to follow. 18. The entire post retirement dues of the petitioner shall be cleared within three months and be paid, failing which petitioner will be entitled to simple interest at the rate of 8% upon delayed payment of dues upon expiry of three months till actual payment so made.