Heard Dr. L.P. Mishra, assisted by Sri Deepanshu Das, learned Counsel for the petitioner and Sri Prashant Chandra, Senior Advocate, assisted by Sri Gaurav Mehrotra for the opposite parties Nos. 2 and 3 and Sri Abdul Moin, Additional Chief Standing Counsel for opposite party No.1.
Through the instant writ petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 30.5.2012 passed by the Principal Secretary, Cooperative Department, Civil Secretariate, Lucknow, whereby the petitioner has been placed under suspension and an Enquiry Committee comprising of Sri Ramhit Gupta and Sri Ram Jatan have been constituted for holding inquiry. Petitioner has also assailed the order of transfer dated 7.5.2012 passed by the opposite party No.1 contained in Annexure No.3 to the writ petition, transferring the petitioner from the office of Registrar, Co-operative Societies (Headquarters), Uttar Pradesh, Lucknow to the Principal, Co-operative Training Centre, Varanasi.
Brief facts, giving rise to the instant writ petition, are as under :-
Petitioner-Nawal Kishore was appointed and joined as Regional Assistant Registrar, Cooperative Societies (Class II post) in the office of Deputy Registrar, Moradabad on 13.3.1984. In 1994, petitioner was promoted as Deputy Registrar, Co-operative Societies (Class-I post). Subsequently, on 21.4.2001, the petitioner was promoted as Additional Registrar, Cooperative Societies (Class I post).
In the year 2005, the then sitting Member of the Legislative Assembly of the State of Uttar Pradesh and presently a Cabinet Minister in the State of Uttar Pradesh, was elected as Chairman of U.P. Sahkari Gram Vikas Bank (erstwhile U.P. Co-operative Land Development Bank) [hereinafter referred to as the "Bank"].
In the year 2007, the U.P. Co-operative Societies Act, 1967 was amended including the provisions of Section 29, whereby the term of a Committee of Management of a Co-operative Society was reduced from five years to two years and Administrators were appointed by the State Government in place of all the outgoing Committee of Management of all Co-operative Societies.
Pursuant to the said amendment, the Committee of Management of the Bank, which was constituted in the year 2005, stood dissolved in the year 2007 and Administrator was appointed by the Government in place of outgoing Committee of Management but even after dissolving the outgoing Committee of Management, in which, the Cabinet Minister, who was the Chairman of the Bank, had continued to reside in the guest house of the Bank situated at Sarvapalli Marg and as such, proceedings for eviction from the said guest house was initiated against the erstwhile Chairman of the Bank. Against the said eviction proceedings, a writ petition, bearing No. 6667 (M/B) of 2007 was preferred by him and a Division Bench of this Court, vide order dated 4.12.2007, as an interim measure provided that if any premises has been allotted or given to any office bearer or member by virtue to his being an office bearer in respect of the Society and since no fresh election has taken place nor any new office bearer has come in the office, he shall not be evicted. It was also ordered that the order dated 4.12.2007 will be applicable in all pending matters. Pursuant to the order dated 4.12.2007, the ex-Chairman of the Committee of Management of the Bank continued to reside in the Guest House of the Bank and at present also, he is residing in the same premises.
It is relevant to point out that amendments, referred to above, in Societies Act were questioned before this Court in a number of writ petitions including writ petition No. 6665 (M/B) of 2007 filed by one Rakesh Kumar Singh, ex-elected Director of the outgoing Committee of Management of U.P. Sahkari Gram Vikas Bank, which was connected with writ petition No. 6667 (M/B) of 2007. A Division Bench of this Court, vide interim order dated 14.9.2007, provided that the Administrator of the Co-operative Societies shall not take any policy decisions.
Subsequently, in the year 2009, an Ordinance, bearing No. 8 of 2009, was issued by the State Government, whereby the time period for continuation of Administrator in absence of Committee of Management of a co-operative society was increased to two and a half year. The said Ordinance was challenged in a number of writ petitions including writ petition No. 9830 (M/B) of 2009. This Court, vide order dated 9.11.2009, stayed the operation and implementation of U.P. Ordinance No. 8 of 2009. Subsequently, vide order dated 30.11.2009, the Principal Secretary, Co-operative Department was appointed as the sole Administrator of the Bank and he started functioning as such while taking assistance of the Additional Registrar (Banking).
On account of bifurcation of territorial bounderies of the State by U.P. State Reorganization Act, 2000, some of the branches of U.P. Sahkari Gram Vikas Banks fell within the State of Uttarakhand and some remain in the State of U.P. and as such, a writ petition, bearing No. 2276 (M/B) of 2010 was preferred before this Court. This Court, vide an ad interim order dated 17.3.2010, stayed the election process till the dispute that whether U.P. Sahkari Gram Vikas Bank is a multi state Co-operative Society or not, is decided. In compliance thereof, the elections for constituting the Committee of Management of U.P. Sahkari Gram Vikas Bank could not be held since 2007 till date and since 2009, the Principal Secretary Co-operative Department is working and functioning as the Administrator in place of the Committee of Management.
According to the petitioner, he being the then Managing Director of the Bank, was impleaded as an opposite party in the said writ petitions and the petitioner was asked not to support the said amendment and not to oppose the said writ petitions contrary to the instructions of the Government but the petitioner did not accede to the said request and due to this reason, several persons were annoyed with the petitioner including members of the outgoing Committee of Management of the Bank. According to him, when the new Government in the State of U.P. came into power, due to the said annoyance, petitioner was transferred from the post of Managing Director, Sahkari Bank to the office of Registrar, Co-operative Societies, Headquarters at Lucknow on 30.3.2012. In pursuance thereof, the petitioner joined and continued on the post of Additional Registrar (Class-I post). Subsequently, the petitioner was again transferred vide order dated 7.5.2012 from the office of Registrar, Co-operative Societies (Headquarters), Lucknow to the post of Principal, Co-operative Training Centre, Varanasi.
Pursuant to the transfer order dated 7.5.2012, the petitioner joined on the post of Principal on 10.5.2012, on believing it to be a post of Class I. Subsequently, Hon'ble the Chief Minister of the State of U.P. hold a meeting on 20.3.2012, wherein instructions were given to one Sri M.K. Dwivedi, who was to retire on 31.3.2012, to inquire whether any policy decisions were taken or any appointments were made in the U.P. Co-operative Land Development Bank during the period when the Administrator was functioning. On 13.4.2012, the Registrar, Co-operative Societies brought to the knowledge of the Secretary (Co-operative) that the Principal Secretary, Co-operative was managing the affairs of the U.P. Co-operative Land Development Bank, who was appointed by the Hon'ble High Court and as such, Sri M.K. Dwivedi, who was subordinate to the Principal Secretary, Co-operative Department, could not conduct the enquiry in the matter. In pursuance thereof, vide order dated 5.5.2012, a three members committee was constituted to inquire into the matter and on inquiry, the Committee had submitted the preliminary inquiry report. On the basis of the said report, the petitioner was placed under suspension vide order dated 30.5.2012. Hence the instant writ petition.
Dr. L.P. Mishra, learned Counsel for the petitioner, while assailing the order of suspension dated 30.5.2012, has vehemently contended that the order dated 20.3.2012 being with respect to the decisions taken by the Administrator and as such, on 13.4.2012, the Registrar, Co-operative Societies brought to the knowledge of the Secretary (Co-operative) that the Principal Secretary, Co-operative was managing the affairs of the U.P. Co-operative Land Development Bank, who was appointed by the Hon'ble High Court and as such, Sri M.K. Dwivedi, who was subordinate to the Principal Secretary, Co-operative Department, could not conduct any inquiry in the matter. Pursuant to the letter dated 13.4.2012, a three members committee was constituted to inquire into the matter vide order dated 5.5.2012.
Elaborating his submission, Sri Mishra submits that the Inquiry committee having been constituted only on 5.5.2012, the petitioner was taken by surprise on being served with copy of the impugned order of suspension dated 30.5.2012, suspending the petitioner, allegedly on the basis of some preliminary inquiry conducted by Shri M.K. Dwivedi without any information or intimation of the same to the petitioner as also without giving any opportunity of hearing to the petitioner. He further submits that on service of the impugned order of suspension dated 30.5.2012, petitioner made inquiries regarding the institution of the inquires and he came to know that pursuant to the meeting dated 20.3.2012, Mr. M.K. Dwivedi was appointed as Inquiry Officer only on 26.3.2012 but the copy of the order was neither sent nor served upon the petitioner nor the Bank. Furthermore, Sri M.K. Dwivedi having attained the age of superannuation on 31.3.2012, thus, it would be apparent that no inquiry, in fact, was conducted by him as the same was not physically possible as 31.3.2012 being a Saturday, the government offices in the State of U.P. including the Secretariate as well as the Registrar office remain closed and as such, there was only three days available in which he could have conducted the inquiry i.e. from 27.3.2012 to 29.3.2012. Surprisingly, in a very short span, he concluded the enquiry and submitted its report on 30.3.2012, which is highly improbable.
Sri Mishra further submits that during the course of inquiry, Sri M.K. Dwivedi neither wrote any letter to the office of U.P. Co-operative Gram Vikas Bank nor summoned any officer or records from the Bank to the best knowledge of the petitioner. He further submits that from perusal of the letter dated 13.4.2012 and the order dated 5.5.2012 constituting a fresh enquiry committee to enquire into the matter, it transpires that no enquiry had actually been conducted and in fact the impugned order of suspension dated 30.5.2012 has been passed without holding any inquiry and the alleged report submitted by Sri M.K. Dwivedi is in fact a table enquiry having been prepared by him subsequent to his retirement as well as subsequent to 5.5.2012 and antedated, illegally and arbitrary.
Sri Mishra further submits that petitioner having been promoted to the post of Additional Registrar on 21.4.2001 and both Sri Ramhit Gupta and Sri Ramjatan having been appointed as Additional Registrars subsequent to the petitioner on 15.4.2010, as such, both are much juniors to the petitioner and the impugned order dated 30.5.2012 appointing Sri Ramhit Gupta and Sri Ramjatan is absolutely illegal and arbitrary and cannot be sustained in the eyes of law.
Lastly, Sri Mishra submits that on 30.5.2012, the Principal Secretary, Co-operative Sri Devashish Panda was on leave and to the best of knowledge of the petitioner, the impugned order has not been passed under the signature of Principal Secretary. He submits that Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 clearly provides that the concerned Head of Department is to sign the order of suspension and in the present case, the concerned Head of Department is the Principal Secretary, Co-operative, who is empowered and in his absence, the Special Secretary, is neither authorized nor empowered to pass such order. Thus, the impugned order has been passed wholly without jurisdiction.
While assailing the impugned order of transfer dated 7.5.2012 passed by the opposite party No.1, Dr. L.P. Mishra, learned Counsel for the petitioner has submitted that when a new Government came to power, the erstwhile Chairman became the Cabinet Minister and soon thereafter petitioner was transferred from the post of Managing Director, Sahkari Bank to the office of Registrar, Co-operative Societies, Headquarters at Lucknow vide order dated 30.3.2012. In pursuance thereof, the petitioner joined and continued on the post of Additional Registrar, which is a Class-I post. Subsequently, the petitioner was again transferred vide order dated 7.5.2012 from the office of Registrar, Co-operative Societies (Headquarters), Lucknow to the post of Principal, Co-operative Training Centre, Varanasi. On joining, petitioner came to know that Principal, Co-operative Training Centre, Varanasi is a Class II post earmarked for appointment of the rank of Assistant Registrar and below and the said post of Principal, Co-operative Training Centre is to be filled up by deputation, as would be evident from the list dated 1.12.2009 but the impugned order does not speak of transfer of the petitioner to the said post on deputation nor any consent of the petitioner was ever taken for sending the petitioner on deputation by the opposite parties prior to posting the petitioner on a post which can only be filled up by deputation, despite the fact that no person can be sent for deputation without his consent. Furthermore, the petitioner having been transferred to the Registrar Office Headquarters at Lucknow only on 30.3.2012 and as such, there was neither any reason nor occasion to again transfer the petitioner vide impugned order dated 7.5.2012 i.e. within 37 days of the passing of the earlier order of transfer. Thus, the impugned order of transfer dated 7.5.2012 transferring the petitioner from Class I post to a Class II post amounts to reversion of the petitioner by two grades, which is a malice of law.
So far as the plea of the petitioner's Counsel that the impugned order of suspension dated 30.5.2012 is bad in law insofar as Sri Ram Hit Gupta and Sri Ram Jatan, who are much junior to the petitioner, were appointed jointly as Enquiry Officer to conduct the disciplinary enquiry against the petitioner, Sri Prshant Chandra, Senior Advocate, appearing on behalf of the Bank submits that the impugned order dated 30.5.2012 with regards to appointment of Sri Ram Hit Gupta and Sri Ram Jatan jointly as Enquiry Officer to conduct the disciplinary enquiry against the petitioner, is no more in existence insofar as the said order has subsequently been modified vide order dated 16.7.2012 i.e. prior to filing the instant writ petition, whereby instead of Sri Ram Hit Gupta and Sri Ram Jatan, Additional Registrars, one Sri V.P. Singh, Special Secretary, Department of Co-operative Department, Government of U.P. has been appointed as Enquiry Officer, a copy of which has been annexed as Annexure Nos. CA-1 to the counter affidavit. Thus, after issuance of order dated 16.7.2012, the prayer for quashing order dated 30.5.2012 has lost its relevance and the writ petition, so far it relates to the above prayer, has become infructuous.
However, Sri Chandra, while defending the appointment of Sri Ram Hit Gupta and Ram Jatan, both Additional Registrar, as Eqnuiry Officer, submits that the allegations are contrary to the records and the same are absolutely frivolous insofar as the above two officers in the original gradation/seniority list of the feeding cadre i.e. Additional Registrar, are senior than the petitioner and the petitioner, however, got benefit of the newly inserted Rule 8-A of the U.P. Government Servant Seniority Rules, 1991, which was subsequently quashed by this Court and has been affirmed by the Hon'ble Supreme Court. Therefore, it is absolutely wrong to say that the abovenamed two officers are junior than the petitioner. Thus, there was no infirmity or illegality in the appointment of Sri Ram Hit Gupta and Sri Ram Jatan as enquiry Officer to conduct the disciplinary enquiry against the petitioner.
So far as the relief seeking quashing of the order dated 7.5.2012, whereby the petitioner was transferred to the post of Principal, Co-operative Training Centre, Varanasi is concerned, Sri Chandra submits that the impugned order of transfer dated 7.5.2012 has outlived its life and no more in existence insofar as once the petitioner was placed under suspension vide order dated 30.5.2012, the posting as Principal, Co-operative Training Centre, Varanasi gets over as while being under suspension, the petitioner does not continue to be Principal of the aforesaid Training Centre. Even otherwise, on 11.7.2012, a fresh order was passed, whereby the petitioner was attached at the Co-operative Training Centre, Varanasi. A copy of the order dated 11.7.2012 has been annexed as Annexure No. CA-2 to the counter affidavit.
Sri Chandra further submits that pursuant to the impugned order of transfer dated 7.5.2012, the petitioner has joined at the above transferred place and as such, the petitioner had acquiesced with the transfer order dated 7.5.2012 and further as the transfer order dated 7.5.2012 has outlived its life and is no more in existence, as stated earlier, after the issuance of suspension order dated 30.5.2012, placing the petitioner under suspension and the attachment of the petitioner at Training Centre, the prayer regarding relief against the transfer order dated 7.5.2012 is absolutely misconceived and is liable to be rejected.
Elaborating his submission, Sri Chandra submits that challenge to the suspension order dated 30.5.2012 also does not warrant any relief from this Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India for the reason that the charges contained in the impugned suspension order dated 30.5.2012 are grave in nature, which indicate gross financial irregularities and violation of the orders/rules which have caused financial loss to the Bank. He submits that in the event of charges being proved, as it appears to be grave in nature, certainly major penalty would be imposed against the petitioner. Not only so, the charge-sheet contained the charges in detail, has been issued by the State Government on 16/17.7.2012, a copy whereof has already been served upon the petitioner on 24.7.2012.
Placing reliance upon the judgment of Hon'ble Supreme Court in the case of Deputy Inspector General of Police Versus K.S. Swaminathan reported in 1996 (11) SCC 498, wherein the Apex Court has held that it is not appropriate for the Tribunal or the Court to look into the truthfulness of the charges leveled while initiating a disciplinary proceeding, Sri Chandra submits that charge-sheet along with evidences in support of the charges have already been served upon the petitioner and a bare perusal of the charge-sheet establishes that the charges levelled against the petitioner are grave, involving financial and other irregularities committed by the petitioner and during the pendency of the same, the petitioner has been placed under suspension, the petition, as such, has no force and is liable to be dismissed.
So far as the plea of the petitioner's counsel that the suspension order is based on preliminary/fact finding enquiry conducted by Sri M.K. Dwivedi without associating the petitioner in the inquiry and without affording any opportunity of hearing to the petitioner, Sri Chandra submits that the preliminary enquiry is merely for the purposes of ascertaining that whether prima facie there is any substance in the charges or not and there is no mandatory requirement in law to associate the delinquent employee in the preliminary/fact finding enquiry. Furthermore, Sri M.K. Dwivedi was much senior to the petitioner in the seniority list.
Sri Chandra further submits that the plea of the petitioner's Counsel that the said enquiry was conducted within a span of three days is patently misconceived and without any substance viz. as already stated hearinabove, the sole purpose of conducting the preliminary enquiry is to prima facie ascertain the veracity of the charges against the delinquent employee, hence, three days time cannot be said to be a short span for conducting preliminary enquiry. Thus, there can be no straight jacket formula for calculating number of days required for conducting the preliminary enquiry. Thus, the allegation of the petitioner is misconceived.
Lastly, Sri Chandra submits that on perusal of the averments made in the writ petition, it reflects that although the allegations have been levelled against the Hon'ble Minister in ambiguous and vague terms but the Hon'ble Minister has not been impleaded as party by the petitioner and the writ petition, as such, is liable to be dismissed on the ground of misjoinder of party alone. In support of his submission, he relied upon the judgment of the Hon'ble Apex Court in the case of Dr. J.N.Banavalikar Versus M.C.D. and another reported in AIR 1996 SC 326 and Federation of Railway Officers Association and others Versus Union of India and others reported in AIR 2003 SCW 1764.
Countering the plea of the petitioner's counsel that the impugned order of suspension has not been passed by the Head of Department i.e. Principal Secretary as on 30.5.2012, the Principal Secretary was on leave, Sri Abdul Moin, learned Additional Chief Standing Counsel submits that on the date of passing the impugned order of suspension dated 30.5.2012, Principal Secretary Co-operative was on leave and as such, Mr. Alok Ranjan, APC, who was officiating as Principal Secretary, has passed the impugned order of suspension. Thus, the writ petition is liable to be dismissed.
We have heard learned Counsel for the parties and perused the records.
The law of suspension is well settled that during suspension, relationship of master and servant does not seize but only an employee is forbidden to perform his official duties. Further, suspension is not a punishment. It may be pointed out that under the provisions of Rule 4 of the U.P. Government Servants (Discipline & Appeal) Rules, 1999, an officer/servant can be placed under suspension in contemplation of enquiry or during the pendency of the enquiry, at the discretion of the appointing authority.
As regard, interference by High Court under Article 226 of the Constitution of India, the Apex Court has propounded that the Courts or Tribunals cannot interfere at the stage of charge sheet or to look into the correctness of the charges levelled against an employee because it is for the Inquiry Officer to enquire into the correctness of the charges after examining the evidence which would come on record.
At this juncture, it would be relevant to refer to the judgment of Honble Supreme Court in the case of Union of India and others vs Upendra Singh reported in 1994 (3) SCC 357, it was held as under:
"In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into."
In the case of Union of India and Another vs Ashok Kacker reported in 1995 Supp (1) SCC 180, it was held as under:
"The respondent has full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf. This was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet. The appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon."
Similarly in State of Punjab and Others Vs. Ajit Singh reported in 1997 (11) SCC 368, it was held as under:-
"The High court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever."
The law is thus well settled that courts should not interfere at the stage of charge sheet. Even otherwise, contentious issues have been raised by the respondents disputing the allegations, therefore, we cannot entertain this writ petition at this stage as it is premature. We are also satisfied that the order of suspension has been passed by the competent authority.
As far as the impugned order of transfer is concerned, the petitioner joined at the transferred place of posting i.e. as Principal, Co-operative Training Centre, Varanasi, without any demur and protest. Therefore, now the petitioner cannot raise this plea that his position was not according to his status. Furthermore, the above referred order of transfer has lost its significance due to subsequent development i.e. on account of placement of the petitioner under suspension and his attachment.
For the above reasons, no interference under Article 226 of the Constitution of India is made out.
The writ petition is, accordingly, dismissed as premature with liberty to the petitioner to defend himself before the Inquiry Officer. Of course, if petitioner is aggrieved by the official orders to be passed by the respondents ultimately, it would be open to him to challenge the same before the appropriate forum. We would like to clarify that we have not adjudicated the contentions of either side on merits of the disciplinary case.
No order as to costs.
[S.V.S. Rathore, J.] [Rajiv Sharma, J.] Order Date : 31st August, 2012 Ajit/-