Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent nos. 1 to 6 and Sri Rama Kant Dixit, learned counsel appearing for respondent no.7.
By means of the present petition, the petitioner has prayed for a mandamus commanding the respondents to consider the case of the petitioner for appointment on the post of Accountant as per order dated 24.01.2005 issued by respondent no.5, a copy of which is Annexure-1 to the writ petition.
Learned counsel for the petitioner contends that the petitioner had been appointed on the post of Accountant on 01.08.1982 under respondent no.7 and worked up to the year 1999. A resolution dated 20.01.2000 was passed against the petitioner without giving him any opportunity of hearing and thereafter restraining him to work. The petitioner continued to run from pillar to post but to no avail and he was not permitted to continue thereafter. It is contended that when the matter was taken up with respondent no.5 i.e. the Chief Development Officer Cooperative, he issued an order dated 24.01.2005, a copy of which is Annexure-1 to the writ petition, requiring respondent no.7 to engage the petitioner but to no avail and hence the present petition.
On the other hand, Sri Rama Kant Dixit, learned counsel appearing for respondent no.7, on the basis of averments contained in the counter affidavit, argues that the petitioner was often absent from duty with the result that a notice was issued to the petitioner informing him to join his duties but to no avail. Thereafter, Sanchalak Mandal vide its resolution dated 20.01.2000, a copy of which is Annexure CA-2 to the counter affidavit, stayed the services of the petitioner and also provided that if in future business of the society increases then he would be informed. Sri Dixit placing reliance on the bye-laws of the society namely Clause 55 (6), a copy of which has been filed as Annexure CA-3 to the counter affidavit, contends that the power to stay the services of an employee is vested with the Sanchalak Mandal and exercising the said power, the services of the petitioner have been stayed. It is also contended that there is no illegality or infirmity in the said order.
Having heard learned counsel for the contesting parties and having perused the records, what apparently comes out is that the petitioner was indisputably working on the post of Accountant when his services were sought to be stayed by the Sanchalak Mandal vide its resolution dated 20.01.2000. The power of staying the services of an employee are sought to be derived from sub-clause (6) of Clause 55 of the bye-laws. However, a perusal of sub-clause (6) of Clause 55 reveals that the society is vested with the power to appoint the employees, remove them, suspend them or to punish them but the said clause does not contain any provision of staying the services of an employee. Thus, it is apparent that the said resolution has been passed without considering the provisions of relevant bye-laws as no such power can be said to be available to the Sanchalak Mandal to stay the services of the employee concerned.
In this view of the matter, the present petition is disposed of directing respondent no.7 to consider the case of the petitioner for continuing on the post of Accountant in terms of the bye-laws.
Let such consideration be done within a period of three months from the date of receipt of a certified copy of this order.
Order Date :- 26.11.2019 A. Katiyar