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2024 DIGILAW 1791 (ALL)

Surendra Nath Pandey v. State of Uttar Pradesh

2024-08-01

AJIT KUMAR

body2024
JUDGMENT : AJIT KUMAR, J. 1. Heard Shri Girish Kumar Singh, learned counsel for the petitioner and Shri Ravindra Singh, learned counsel for the respondents. 2. Petitioner Surendra Nath Pandey, worked as a Seasonal Clerk with the 4th respondent continuously ever since his initial appointment made in the year 1990 until he attained the age of superannuation on 31.08.2009. 3. In the present petition, petitioner is aggrieved by the order passed by the disciplinary authority, namely, the Secretary of District Cane Services Authority, Kushinagar dated 31.01.2015 whereunder he has been held guilty of loss to the society for his alleged misconduct, embezzlement and resistant and further not to count the period he has been under suspension towards his post retirement dues. Petitioner is also aggrieved by the order passed by the Regional Cane Services Authority/ Deputy Cane Commissioner, Deoria. 4. The submission advanced by the learned counsel for the petitioner is that petitioner being a Seasonal employee of the society and having continuously worked as Seasonal Clerk is entitled to post retirement dues admissible to such employees under the Uttar Pradesh Cooperative Societies Services Regulation, 1975. He has placed reliance upon the relevant Regulations 27 and 28 of the Service Regulations in support of his argument that if the disciplinary proceedings drawn in respect of Seasonal Clerks are not concluded in the same season, then such proceedings would be taken to have been dropped. He argues that once the proceedings are deemed to be dropped under the relevant Regulations, the respondent could not have reopened the issue after five years of his retirement. 5. Briefly stated facts of the case are that petitioner was placed under suspension on 09.10.1999 on the basis of a report of the Police Superintendent, Kushinagar dated 13.10.1997 asking him to furnish explanations regarding certain charges of utilizing the property of the society for personal benefits. It transpires that the petitioner failed to submit any reply and so the proceedings drawn remained pending. Petitioner was subsequently reinstated revoking the suspension order on 15.02.2001 holding that the disciplinary proceedings will not be adversely affected and will continue. It transpires that some report was submitted upon which the resolution was adopted by the society inflicting punishment and so the consequential order came to be passed by the Secretary of the District Cane Services Authority, Kushinagar on 31.01.2015. It transpires that some report was submitted upon which the resolution was adopted by the society inflicting punishment and so the consequential order came to be passed by the Secretary of the District Cane Services Authority, Kushinagar on 31.01.2015. Petitioner's appeal was dismissed on merits on the ground that petitioner was found guilty in the enquiry report submitted by specially constituted committee. 6. Countering the arguments advanced by learned counsel for the petitioner, Shri Ravindra Singh, learned Advocate appearing for the respondents No. 3 and 4 submits that the order dated 15.02.2001 to reinstate the petitioner itself provided that disciplinary proceeding, already going on, will not get adversely affected and he submits that the charges were serious and it was not once but the previous conduct of the petitioner also showed that even in the past he was suspended and faced charges. It is argued by Mr. Ravindra Singh, that the society was fully justified in adopting resolution on the basis of report submitted by the Enquiry Committee dated 27.01.2001, however, Shri Singh could not offer any explanation as to what transpired for the society in taking action after delay of 13 years from the date of presentation of enquiry report. 7. Having heard learned counsel for respective parties and having perused the records, I find it to be an admitted position on the part of the respondent that petitioner after was placed under suspension in the year 1999, disciplinary proceedings instituted was not concluded either in the year 1999 or in the subsequent year 2000. It has though come on record that some enquiry report was submitted on 27.01.2001 but what exactly was the report is not discussed in the order impugned. All that is discussed is that the resolution was adopted by the society in relation to the disciplinary proceedings going on against the petitioner in its meeting held 30.12.2014 and in view of the unanimous resolution so adopted the petitioner was liable to be inflicted with punishment as has been inflicted upon him. 8. In order to appreciate the argument advanced by learned counsel for the petitioner, I have carefully gone through the relevant provisions as contained under Regulation 27 and 28 of the Uttar Pradesh Cooperative Society Service Regulation that governed the Seasonal Clerks. The relevant Regulations are reproduced hereunder: “27. 8. In order to appreciate the argument advanced by learned counsel for the petitioner, I have carefully gone through the relevant provisions as contained under Regulation 27 and 28 of the Uttar Pradesh Cooperative Society Service Regulation that governed the Seasonal Clerks. The relevant Regulations are reproduced hereunder: “27. Disciplinary proceedings;- In the event of a complaint against any member of the seasonal staff, the secretary of the union shall make a preliminary enquiry and if he is satisfied that a prima facie case is established against the person concerned he shall intimate the same to him in the form of charges and call for his explanation to be submitted within a specified time. The secretary of the union shall examine records and submit his final report along with definite recommendation to the District Authority for passing final order in the case. In case the explanation is not received within the specified time the secretary shall submit his final report to the District Authority, on the basis of material already on the file. These proceedings shall be of a summary nature and the secretary should not take more than a month to complete the same. the District Authority should also arrange to dispose of the case within one month of the receipt of the final report from the secretary. In case of default on the part of secretary of the cane union or District Authority as the case may be is not completing the disciplinary proceedings against a seasonal staff by the end of crushing season, the same shall be deemed to have been automatically dropped. 28. The procedure narrated in regulation No. 27 shall not apply where the person concerned has absconded or is continuously absent from duty for a week or where for other reasons it is impracticable to communicate with him. In such cases the Secretary shall submit his final report to the Committee of Management stating the reasons for not following the procedure laid down in regulation No. 27 together with his views and recommendation based on record available for passing final orders in the case.” 9. In such cases the Secretary shall submit his final report to the Committee of Management stating the reasons for not following the procedure laid down in regulation No. 27 together with his views and recommendation based on record available for passing final orders in the case.” 9. From a bare reading of Regulation 27 and the language in which provision has been couched, it can safely be concluded that the proceedings against the Seasonal Clerks by the competent authority are summary in nature and soon after issuing notices and receiving the reply the Secretary should complete the proceedings within one month. The Disciplinary Authority is also placed under obligation to dispose of such cases within one month of the receipt of the final report from the Secretary and it is also provided that if proceedings are not completed as prescribed for, then the enquiry proceedings shall be deemed to be automatically dropped. Mr. Singh during the course of his argument admitted very fairly that disciplinary proceedings are to be concluded within the crushing season in which the seasonal clerk is employed and has been served with the notice to submit explanation. In my considered view the mandate of Regulation 27 would be whether the reply is submitted by delinquent employee or not, the final report of enquiry has to be submitted and action has to be taken within a period of one month. Once the Disciplinary Authority has received the report, it should take decision within a further period of one month. The only exceptional circumstance is where a delinquent employee concerned has absconded or has remained absent from duty for a week or for other reason. 10. Applying the aforesaid provision to the case in hand, I find that petitioner having been placed under suspension by respondents on 09.10.1999, there had been no occasion to treat him to be an absconded person, nor it is the case of the respondent that he never reported for duty. The only fact was that petitioner never submitted reply to the notice dated 09.10.1999. The respondent reinstated the petitioner on 15.02.2001. The only fact was that petitioner never submitted reply to the notice dated 09.10.1999. The respondent reinstated the petitioner on 15.02.2001. In my considered view in the light of the relevant provisions of Regulation 27 the disciplinary proceedings initiated against the petitioner on 09.10.1999 would be taken to have been dropped by the end of the year 1999 or within one month or 2 months thereafter or at the most till the end of then cane crushing season. 11. Even if one is to assume that with the order dated 15.02.2001, the disciplinary proceeding was revived afresh as contemplated in the order revoking suspension of petitioner, the said proceeding could at the most be taken to have lasted in any case, by the end of the year 2001. In no circumstances such proceeding could have been dragged for awaiting the enquiry report. Still further, once the petitioner had retired and ceased to be employee of the society no fresh enquiry could have been set up on 28.10.2013 by constituting a new committee for the alleged loss caused to the society during the period 97-98. Neither the Regulations provide for any disciplinary proceeding to be drawn beyond the period of two months of its initiation, nor does it provide for continuation of proceedings afresh after retirement. Petitioner having retired in the year 2009 to be specific on 31.08.2009, the initiation of proceedings by constituting enquiry committee on 28.10.2013 was not only de hors the procedure prescribed but was also null and void for want of lawful authority under Regulations. It is a settled legal position that if very institution of enquiry or setting up of disciplinary proceeding is void for want of lawful authority then any such consequential action pursuant to such enquiry and consequential enquiry report is liable to be held as null and void. In Sharif-Ud-Din vs. Abdul Gani Lone, (1980) 1 SCC 403 the Court held: “In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. In Sharif-Ud-Din vs. Abdul Gani Lone, (1980) 1 SCC 403 the Court held: “In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of the law is required to be defeated by non-compliance with it, it has to be regarded as mandatory...Whenever the statute provides that a particular act is to be done in a particular manner and also lays down that the failure to compliance with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.” 12. This above view has been reiterated by Supreme Court in Krishna Rai (Dead) through Legal Representative and others Vs. Banaras Hindu University, (2022) 8 SCC 713 . Even the Court referred to its earlier judgment in Tata Chemicals Ltd. V. Commr. of Customs (2015) 11 SCC 628 where it was held: “there can be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eyes of the law.” 13. It is a well known maxim “sublato fundamento cadit opus” meaning, the foundation being removed, the structure falls. In the case of Badrinath Vs. Govt. of Tamil Nadu and others, (2000) 8 SCC 395 it has been held vide paragraph 27 thus: “27. This flows from the general principle applicable to “consequential orders.” Once the basis of a proceeding is gone, may be at a later point of meantime - like the recommendation of the State and by the UPSC and the action taken thereon- would fall to the ground. This principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. This principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor and this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order.” 14. Thus, lack of permission and lawful authority will always make the very first step defective so the entire edifice will have no base to survive. In the case in hand since very proceeding could not have been initiated beyond the crushing season, matter ought to have been put at rest. Initiation of a proceeding beyond the scope of provision and continuation of proceedings for several years and that too after retirement of a seasonal employee, was totally an unwarrant action and so final order of punishment is liable to be held null and void and is so held as well. 15. The appellate authority having not discussed all these points in the order impugned and passed the order simply affirming the order of the District Cane Services Authority, the appellate authority's order passed by Commissioner as Chairman of the Regional Cane Service Authority dated 30.10.2015 is held to be equally bad and unsustainable. Thus, both the impugned orders dated 31.1.2015 passed by the District Can Service Authority, Kushinagar and that of the appellate authority namely Chairman the Regional Cane Service Authority, Deoria dated 30.10.2015 are hereby quashed. 16. Petitioner is held entitled to all post retirement dues as admissible in law. Entire dues shall be paid to the petitioner by the competent within two months from the date of presentation of certified copy of this order. Since termination/ removal order has been held to be absolutely null and void for want of lawful authority petitioner is also held entitled to interest at the rate of 8% from the date of superannuation till the actual payment is made of post retirement dues. Since termination/ removal order has been held to be absolutely null and void for want of lawful authority petitioner is also held entitled to interest at the rate of 8% from the date of superannuation till the actual payment is made of post retirement dues. It is also provided that in case post retirement dues as admissible in law are not paid within the prescribed period as directed hereinabove, petitioner shall be entitled to additional interest at the rate of 12% upon the expiry of two months' period till the actual payment is made.