1. Heard Sri Sharad Malviya, learned counsel for petitioner, Sri Ravi Agarwal, learned counsel for respondent-Societies and perused the material available on record.
2. This writ petition filed under Article 226 of Constitution of India is directed against order dated 09.09.1991 (Annexure-6 to the writ petition) passed by Secretary, Shamli Sahkari Kray-Vikray Samiti Ltd. Gandhi Ganj, Shamli, District Muzaffarnagar informing petitioner that he has not deposited certain funds of Cooperative Society, therefore, should deposit dead-stock and hand over charge and also pay the amount embezzled, by 12.10.1991, failing which his services shall be deemed to have been terminated and no separate order will be passed.
3. Facts in brief, giving rise to the present writ petition, are that petitioner was appointed as Accountant in 1984 in Shamli Sahkari Kraya Vikray Sahkari Samiti Ltd., Shamli, District Muzaffarnagar (hereinafter referred to as "Society"). He was also confirmed on the said post after approval of Deputy Assistant Registrar. He was allowed to officiate as "Secretary" of Society from 10.09.1990 to 13.02.1991. A complaint was made by successor Secretary of Society to Administrator of Society on 19.07.1991 whereupon Administrator required petitioner to deposit the amount, allegedly misappropriated, by 27.07.1991 failing which he shall be deemed to be under suspension. Petitioner submitted reply dated 26.07.1991 whereafter order of suspension was passed on 06.08.1991. By another order dated 24.08.1991, petitioner was directed to handover charge of record by 31.08.1991 else charge would be taken through District Magistrate. Thereafter, impugned order was passed on 09.09.1991 directing petitioner to handover charge of record, dead-stock and the alleged amount embezzled, by 12.10.1991, failing which he shall be deemed to have been terminated and no separate order shall be passed. Aforesaid order has been passed by Secretary of Society. Petitioner submitted reply dated 16.09.1991 and also handed over charge of all dead-stock and records on 06.10.1991. However, Administrator and Secretary of Society did not permit petitioner to function on his post stating that his services stood terminated vide order dated 09.09.1991, hence, this writ petition has been filed by petitioner challenging the said order.
4. A supplementary affidavit has also been filed stating that suspension order dated 06.08.1991 was challenged by petitioner in a writ petition wherein an interim order was passed. Thereafter petitioner was served with a charge-sheet dated 07.08.1991 containing six charges alleging that petitioner is guilty of misappropriation of Rs. 64,969/-. Aforesaid charge-sheet was issued by Additional District Magistrate (Consumer)/Enquiry Officer, Muzaffarnagar. It is also said that a criminal case under Section 409 IPC was registered against petitioner which has resulted in acquittal vide judgment dated 08.08.1996 passed by Sri C.S. Karol, Additional Chief Judicial Magistrate, Kairana in Criminal Case No. 340/9 of 1994. It is also said that an enquiry was conducted by Additional District Cooperative Tehsil Shamli, District Muzaffarnagar wherein it was found that alleged complaint contained forged signatures. Further a disciplinary enquiry was initiated against petitioner on 19.07.1991 and after considering his reply, Additional District Cooperative Officer, in his noting, exonerated petitioner in respect of charges-1 and 6 but held charges- 2, 3, 4 and 5 proved. In respect of charge-2, Society, however, subsequently recovered amount from another employee, Tej Pal Singh, to the tune of Rs. 6548.09. In respect of charges-3 and 4, the matter is pending for arbitration before District Assistant Registrar Cooperative Society, Muzaffarnagar. In respect to charge-5, criminal case has already resulted in acquittal of petitioner. Subsequently, an order was passed taking into account the fact that the present writ petition was dismissed in default on 26.10.2004 but I may place on record that this writ petition has been subsequently restored vide order dated 22.01.2010.
5. A counter affidavit has been filed by Society admitting that petitioner was suspended from the post of Accountant with effect from 06.08.1991 on the charges of misappropriation of Rs. 1,02,404/-, mentioned in the charge-sheet dated 19.07.1991. It is also admitted that petitioner deposited 16 cylinders on 02.08.1991 and five cylinders on 05.08.1991. It is also submitted that Sri Suresh Pawar, Assistant District Cooperative Officer (Consumer), Muzaffarnagar was Enquiry Officer who submitted report dated 07.08.1991 holding petitioner guilty of misappropriation of Rs. 64,969/- and said report was submitted by Enquiry Officer after examining petitioner's reply dated 26.07.1991. Petitioner did not deposit alleged misappropriated amount hence his services stood terminated by order dated 12.10.1991 and said termination was duly approved by Managing Committee of Society on 23.10.1991 as per bye-laws. It is reiterated in para-16 of counter affidavit that petitioner stood terminated with effect from 12.10.1991.
6. In the counter affidavit, it is not stated anywhere that any order of termination was ever passed against petitioner and reference is made only to order dated 09.09.1991 wherein it was said that either he should handover charge of records and deposit certain amount by 12.10.1991 failing which his services shall stand terminated.
7. When questioned, learned counsel for respondents also could not show that after issue of charge-sheet when petitioner submitted reply, Enquiry Officer fixed any date, time and place to hold oral enquiry wherein employer proved the charges and thereafter opportunity was given to petitioner to defend his case and thereafter inquiry report was submitted which ultimately resulted in order of punishment.
8. Reference is also made to Regulation 85 of U.P. Cooperative Societies Employees' Service Regulations, 1975 (hereinafter referred to as "Regulations, 1975"). Learned counsel for respondents, however, could not show, from record, that such procedure was followed at all.
9. In this case, it appears that a charge sheet was issued, reply was received and thereafter Enquiry Officer submitted report. Then a strange order was passed that either petitioner should deposit certain amount etc. by 12.10.1991 failing which he shall be deemed to have been terminated. In my view, entire proceedings, including alleged order of termination, therefore, falls on the following ground:
i. Regulation 85 of Regulations 1975 was not followed.
ii. The order talks of termination and not dismissal or removal though under the Rules, termination is not a punishment and it talks of removal or dismissal.
10. Coming to first aspect, I would like to refer the decision rendered in Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510, wherein Regulation 85 itself was considered, which is also applicable in the present case. Supreme Court has categorically held that unless departmental enquiry is conducted, following procedure prescribed in Regulation 85, any order of punishment without following such procedure would be illegal. Court has also laid down certain mandatory aspects of procedure which have to be followed before imposing a major penalty and the same are as under:-
"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any." (Emphasis added)
11. Since in the present case, procedure prescribed in Regulations, 1975 has not been followed and no order of punishment as such has been passed, therefore, alleged deemed termination of petitioner is of no legal consequence and it is a nullity.
12. Now, coming to second aspect, I find that only such punishment can be awarded which is prescribed under Rules and any punishment which is not provided in Rules is without jurisdiction. Dismissal and removal are termination of specific kinds while "termination" by itself may be punitive or simplicitor. Sometimes cessation of contract of employment due to resignation, retirement etc., is also within the ambit of termination. Order of termination, therefore, cannot be construed as one of the punishment prescribed in Rules since termination by itself is not one of the punishment prescribed in Rules but specific kinds of termination are mentioned in Rules and only such punishment can be imposed and not one which is not prescribed in Rules as held by Supreme Court in Vijay Singh vs. State of U.P. and others, JT 2012(4) SC 105.
13. In view of above discussion, I have no hesitation in holding that alleged "deemed termination" of petitioner with effect from 12.10.1991 pursuant to order dated 09.09.1991 is patently illegal and without jurisdiction.
14. In the result, the writ petition is allowed. Order dated 12.12.1991 insofar as it talks of "deemed termination" of petitioner on and after 12.10.1991 is hereby set aside. Petitioner shall be entitled for all consequential benefits and also a cost of Rs. 7,500/.
Order Date :- 31.1.2019 Siddhant Sahu