RESERVED ON : 27.03.2018 DELIVERD ON :24.04.2018 Case :- WRIT - A No. - 34170 of 2016 Petitioner :- Dhodha Singh @ Dona Singh Respondent :- State Of U.P. And 6 Ors.
Counsel for Petitioner :- Anil Pratap Singh,Jeevan Prakash Sharma,Munna Kumar Singh Counsel for Respondent :- C.S.C.,Tej Narain Tiwari
Hon'ble Siddharth,J.
Heard Sri Munna Kumar Singh, learned counsel for the petitioner and Sri Tej Narain Tiwari, learned counsel for the respondents.
This writ petition has been filed by the petitioner, praying for quashing of the order dated 27.05.2016, passed by the Secretary, District Whole Sale Central Consumer Cooperative Store Limited, Deoria, whereby his services were terminated from the post of In- charge, Kerosene Oil Depot, District Whole Sale Centre Consumer Cooperative Store Limited, Deoria.
The brief facts of the petition are that the petitioner, while working as Depot In-charge of Kerosene Oil Depot, District Whole Sale Central Consumer Cooperative Store Limited, Deoria, during financial year 2011-2012, 2012-2013, was alleged to have defalcated a sum of Rs.26,40,937.93. On the basis of preliminary enquiry, he was found guilty of the aforesaid charge and regular disciplinary proceedings were ordered. Two First Information Reports, one, dated 11.08.2013, under Section 3/7 Essential Commodities Act and the other dated 14.08.2013, under Section 419 I.P.C., were lodged by the Secretary, District Whole Sale Central Consumer Cooperative Store Limited, Deoria, respondent no.7 against the petitioner. One retired Accountant, Sri Jagdish Narayan Upadhyaya was appointed Enquiry Officer by the respondent no.7 by his order dated 29.06.2011. The petitioner was suspended from service on 21.06.2013 and departmental charge sheet was issued to him on 18.01.2014 to which he submitted his reply on 01.02.2014. He requested the enquiry officer to permit him to cross-examine the witnesses and to peruse the record i.e., cash book, stock book, vouchers, ledger, balance sheet, proceedings register, etc., for preparing his defence is but the enquiry officer submitted his enquiry report dated 27.07.2013. The petitioner surrendered and was sent to jail on 18.02.2014 and was finally released on bail by this Court on 13.04.2016. By the impugned punishment order dated 27.05.2016, the petitioner was terminated from service.
The respondents have filed their Counter Affidavit stating that the petitioner misappropriated/ embezzled huge amount to the tune of Rs.26 lacs and odd in the year 2011-2012, 2012-2013 and notice was issued to him to explain/ reply to the charges but he did not submitted any reply and was suspended on 21.06.2013. On 30.06.2011, one, Jagdish Narayan Upadhyaya, working as Accountant in the office of the respondent no.7, was appointed Enquiry Officer. A notice was issued to the Enquiry Officer retiring him from service at the age of 58 years against the prescribed age of superannuation of 60 years, but he objected and finally he was continued in service and retired on February, 2015. A false allegation has been made in the writ petition that Sri Jagdish Narayan Upadhyaya was a retired employee. The documents demanded by the petitioner were made available to him and he had submitted his reply and therefore, asking for those documents again was only for the purpose of making ground for defence. The enquiry report dated 27.03.2013, is based on record and has correctly found the petitioner guilty of defalcation of more than Rs.26 lacs. The respondent no.7 issued a letter dated 07.02.2014 to the petitioner stating that his services are governed by Model Service Regulations for the Employees of U.P. Consumer Cooperative Store issued on 17.01.2002 and not by U.P. Cooperatives Societies Employees Service Regulation, 1975, he was permitted to submit additional reply to the charge sheet after inspection of relevant records available in the office after inspection of records on 23.02.2014. By the letter dated 10.05.2016, he was granted opportunity of personal hearing. The disciplinary proceedings against the petitioner were conducted in accordance with the Rules and the petitioner deliberately did not availed the opportunity of examining records and personal hearing and since he was in jail from 18.02.2014 to 25.04.2016 for about 26 months, therefore, he is not required to be paid any subsistence allowance.
The learned Counsel for the petitioner has argued that the enquiry report dated 27.07.2013 was submitted by the enquiry officer against the petitioner without affording any opportunity of defending his case in violation of Regulation-77-(i)(a) of Model Service Regulations for Employees of U.P. Central Consumer Cooperative Store. Secondly, the Secretary, respondent no.7, before passing the impugned termination order dated 27.05.2016 has not taken any approval from the Board of Directors in violation of Regulation-76 (B) of the Regulations aforesaid. Thirdly, no personal hearing was granted to the petitioner while Regulation-77-(b) of the Regulation provides for the same. Finally, the impugned termination order has been passed without considering the enquiry report of the enquiry officer and after recording any finding of concurrence with the finding of the enquiry officer.
The learned Counsel for the respondents has argued that after submission of the enquiry report dated 27.07.2013, notice was issued to the petitioner on 03.02.2014, 07.02.2014 and again on 13.02.2014 by registered post to show against the enquiry report and inspect the relevant documents. He was further provided opportunity to file additional reply and for leading oral evidence but the petitioner did not availed the opportunity. It is false to allege that the approval of the Board of Directors was not taken before terminating the service of the petitioner. The disciplinary proceedings against the petitioner were initiated and conducted in accordance with the Model Service Regulation, 2002.
After hearing the Counsel for the parties a perusal of Regulation-76 and 77 of the Central Consumer Cooperative Store Limited Employees (excepting Secretary) Service Regulation, 2002 has become necessary. They are as follows,
76. Penalities :-
(i). ........
(ii). .......
(iii). ......
(iv). ........
(a)......
(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.
77. Disciplinary proceedings :- (i) The disciplinary proceedings against an employee shall be conducted by the Inquiry Officer (referred to in clause (v) below with due observance of the principles of natural justice for which it shall be necessary that:
(a) the employee shall be served with a charge- sheet containing specific charge and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within 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 desire;
(c) if no explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary.
A perusal of the Regulation-77 shows that before passing the punishment order, under Regulation-77(i)(c), the employee is required to be served with a charge sheet along with evidence in support of each charge and he is required to submit explanation in respect of the charges within reasonable time , which shall not be less than 15 days, as per Regulation-77(i)(a). As per Regulation-77(i)(b) such an employee shall 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. In the present case the enquiry report against the petitioner has been submitted on 27.07.2013 (Annexure-7 to the writ petition) when the charge sheet has been issued to the petitioner on 18.01.2014 and he has submitted his reply thereafter on 30.01.2014. Therefore, it is clear from the record that after the submission of the enquiry report by the enquiry officer, the petitioner was directed to submit reply to the charge sheet. In the charge sheet there is no mention of the enquiry report dated 27.07.2013 by the Enquiry Officer and therefore, the entire disciplinary enquiry against the petitioner was against the Regulation-77 and also against the principles of natural justice. Issuance of charge sheet was after enquiry and no final order has been passed after receipt of reply to the charge sheet which may prove that the initial enquiry was only a preliminary enquiry and thereafter elaborate enquiry was conducted and final punishment order was passed against the petitioner. A perusal of the punishment order dated 27.05.2016 shows that there is no mention of the date of enquiry report, nor in the Counter Affidavit filed by respondents, there is mention of any other enquiry report against the petitioner. In the counter affidavit also the only enquiry report submitted by the Enquiry Officer is stated to be dated 27.07.2013, which was prior to the issuance of the charge sheet to the petitioner.
Further, the issue of approval of the punishment order, raised by the petitioner that the punishment order was required to be approved by the Board of Directors as per Regulation-77-(b) of the Regulations is not borne from the record. Regulation-77(b) only provides that, “ No employee shall be removed or dismissed by any authority other than by which he was appointed unless the appointing authority has made prior delegation of such authority to such person or authority in writing”. Therefore, the argument of the learned Counsel for the petitioner on this account is erroneous and can not be accepted.
Hence the disciplinary proceedings against the petitioner were absolutely illegal and against the express provisions of Regulation-77 of the Central Consumer Cooperative Store Limited Employees (excepting Secretary) Service Regulation, 2002 and the punishment order has been passed on the basis of such an enquiry and also on the ground of involvement of the petitioner in criminal cases, without considering the conduct of the petitioner and recording finding to this effect. No material has been brought on record regarding the status of criminal cases. Only the copy of the First Information Report and the Bail orders have been brought on record. Whether the Investigating Officer of the police has submitted any charge sheet against the petitioner after due investigation and criminal trial is pending or not has not been stated by the parties anywhere in the writ petition. The petitioner is stated to have retired from service on 01.02.2018 and in the absence of any statutory provision providing for enquiry afresh, after the retirement of the petitioner from service, the disciplinary enquiry against the petitioner can not be directed to be conducted again. In the case of Dev Prakash Tiwari Vs. U.P. Cooperative Institutional Service Board, (2014) SCC 260, the Apex Court has held, in the context of any employee governed by U.P. Cooperative Employees Service Regulation, 1975 that after retirement of an employee disciplinary proceedings against him can not be continued.
Therefore, the impugned termination order dated 27.05.2016, passed by the Secretary, District Whole Sale Central Consumer Cooperative Store Limited, Deoria against the petitioner is hereby quashed. The petitioner shall be entitled to 50% of his arrears of salary and other post retiral dues, which shall be paid to him within 6 weeks from the date of presentation of the certified copy of this order before the respondent concerned.
This writ petition is allowed. No order as to costs.
Order Date :- 24.04.2018 SS