JUDGMENT R.A. Sharma, J.
1. The petitioner, who was an employee in Sadhan Sahkari Samiti Ltd. Sakardaha, Block Harraiya District Basti (herein after referred to as the Society), was appointed as officiating cadre Secretary of another Society viz., Sadhan Sahkari Samiti Ltd. Khamaria Vikas Khand Parashurampur District Basti vide orders dated 7-6-1986 and 8-5-1988 The District Administrative Committee passed a resolution on 26th May, 1989 suspending him. The District Assistant Registrar, who is Member-Secretary of the said Committee, passed another order dated 7-7-1989 directing reversion of the petitioner from the pest of officiating Secretary on the ground that the petitioner has mis appropriated a sum of Rs. 3,48,554.56. By the said order the Assistant Registrar also directed the Society in which the petitioner was appointed as Accountant sales man to terminate his service forthwith. Pursuant to the direction of the Assistant Registrar the Society passed order dated 7-1-1990 terminating petitioner's service. Being aggrieved by the aforesaid orders the petitioner has filed this writ petition, seeking the following reliefs :
"(a) issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 7-1-1990 and 7-7-1989 passed by the respondents No. 2 and 1 respectively.
(b) issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner in continuance of service.
(c) issue a writ, order or direction in the nature of mandamus directing the respondents to pay the salary of the petitioner.
(d) issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(e) award costs of the petition to the petitioner."
2. While entertaining this writ petition this Court passed an interim order dated 30-1-1990 staying the operation of the order of termination of service dated 7-1-1990. Letter on this Court passed another interim order dated 23-12-1990 issuing interim mandamus directing the respondents to pay salary to the petitioner or show-cause. The learned counsel for the petitioner has stated that the said orders have not been acted upon by the respondents.
3. A counter-affidavit has been filed by the Secretary of the Society. The petitioner has filed rejoinder-affidavit in reply thereto. However, no counter-affidavit has been filed by any other respondents.
4. The learned counsel for the petitioner has challenged the impugned orders on the ground that the same were passed without giving opportunity of being heard to the petitioner. The submission of the learned counsel for the respondents is that no such opportunity is required to be given. The learned counsel for the respondents has also raised preliminary objection about maintainability of the writ petition on the ground that neither the Society is the 'State' within the meaning of Article 12 of the Constitution of India nor are the conditions of service of the petitioner governed by any Statutory Rules or Regulations. Before dealing with the controversy on merit it is appropriate to decide the preliminary objection first.
5. In the instant case the petitioner has challenged two orders, one passed by the District Assistant Registrar and the other by the Society. Different considerations will apply while judging the validity of these two orders. So far as the order dated 7-7-1989 passed by the District Assistant Registrar is concerned, the writ petition is clearly maintainable, because the District Assistant Registrar is a Government servant and is also Secretary-Member of the District Administrative Committee, which is a statutory authority under the U. P. Primary Agricultural Co-operative Credit Societies Centralised Service Rules, 1976. Any order passed by a Government servant or by statutory authority affecting the rights of a person is amenable to writ jurisdiction of this Court. The preliminary objection about maintainability of the writ petition as against the order of the District Assistant Registrar, is aocordingly rejected.
6. The District Assistant Registrar by the impugned order dated 7-7-1989 has reverted the petitioner from the post of officiating Secretary of Sadhan Sahkari Samiti Ltd., Khamaria Vikas Khand Parashurampur district Basti on the ground that he was misappropriated a sum of Rs. three and half lac. In the said order it has further been mentioned that Sri Ram Bhavan Yadav was appointed Enquiry Officer, who submitted his report holding the petitioner guilty of mis-appropriation. In paragraph 11 of the counter-affidavit filed on behalf of the Society it has been stated that Sri Ram Bhavan Yadav was appointed Enquiry Officer by the District Project Officer, who after minutely examining the record came to the conclusion that the petitioner has committed financial irregularity and mis-appropriated the amount. It is further mentioned that after having received the aforesaid report of the preliminary enquiry conducted by Sri Ram Bhavan Yadav the Deputy Registrar of the Co-operative Societies Gorakhpur directed the District Assistant Registrar Basti to take disciplinary action against the petitioner forthwith. However, no disciplinary proceedings were initiated against the petitioner and the District Assistant Registrar without giving any opportunity of being heard to the petitioner passed the impugned order dated 7-7-1989 reverting him from the post of Secretary on the ground of mis-appropriation of funds and further directed the Society to which the petitioner was reverted to terminate his service forthwith. In paragraphs 9 and 11 of the writ petition the petitioner has stated that before passing the impugned order no opportunity of being heard was given to him. No counter-affidavit has been filed by or on behalf of the District Assistant Registrar denying the aforesaid allegations of the petitioner, although he is a party to the writ petition. The allegations, therefore, are liable to be taken as correct Here it may also be mentioned that only one counter-affidavit has been filed on behalf of the Society. The Society or its Secretary cannot know as to whether the District Assistant Registrar before passing the order dated 7-7-1889 gave any opportunity of being heard to the petitioner, because neither the Society nor its Secretary was party to the proceeding in which the said order was passed, That apart, in paragraph 16 of the counter-affidavit filed by the Society it has been mentioned that "there is no vacancy of salesman in the aforesaid Society, therefore, no occasion arises for affording any reasonable opportunity to the petitioner." It is thus apparent that although the order dated 7-7-1989 passed by the District Assistant Registrar contains stigma, but it has been passed without giving any opportunity of being heard to the petitioner. It is well settled that the order of reversion with stigma constitutes penal consequences and amounts to punishment and such an order cannot be passed without complying with the principle of natural justice. In the instant case that has not been done.
7. It is true that an officiating Secretary has no right to the post and as held by a Division Bench of this Court in Vidya Varidhi Pandey v. Sahayak Vikas Adhikari, Sahkarita and Ors. (Writ Petition No. 16595 of 1994 decided on July 10, 1997), he can be reverted and/or his service as officiating Secretary can be terminated without giving him any notice or opportunity of being heard. It was further laid down that the conditions of service of officiating Secretary is not governed by U. P. Primary Agricultural Co-operative Credit Societies Centralised Service Rules, 1976. But reversion of officiating Secretary with a stigma of mis-appropriation of huge amount involves penal consequences adversely affecting the future prospects of the concerned employee. Such an order cannot be passed unless the employee concerned has been given reasonable opportunity of being heard. But no such opportunity was given to the petitioner. The impugned order dated 7-7-1989 is, therefore, liable to be set-aside.
8. But so far as the order dated 7-1-1990 passed by the Society terminating the service of the petitioner is concerned, the position is different. A Full Bench of this Court in Radha Charan Sharma v. U.P. Co-operative Federation and Ors. (1982 UPLBEC 89) has laid down that a Co-operative Society which is registered under the Co-operative Societies Act and is otherwise free of Governmental control is not an authority within the meaning of Article 12 of the Constitution of India. It was further held that the Co-operative Society being a private body this Court under Article 226 of the Constitution cannot order reinstatement of an employee of such Society even if the order terminating his service is found to be wrong. The Society in which the petitioner is employed is Co-operative Society registered under the Co-operative Societies Act and there is nothing on the record to show that the Government has administrative or financial control over it. Such a Society is a private body and unless the conditions of service of its employees are governed by statutory Rules and Regulations, no writ petition challenging the order of termination of service by the employees of such Society will be maintainable. There are no statutory Rules governing the conditions of service of the petitioner. The U. P. Co-operative Societies Employees Service Regulations, 1975, are also not applicable to the employees of the Society, because the Society is not a Co-operative Society, as defined in the said Regulations. A Division Bench of this Court in Ram Singh v. Kisan Sewn Sahkari Samiti Ltd., 1997 (2) UPLBEC 1102, has laid down that if the Society is not a Co-operative Society as defined in the aforementioned Regulations, these Regulations cannot apply to the employees of such a society, with the result that no writ petition against an order passed by such a Society terminating the service of its employees is maintainable.
9. It is true that the order dated 7-1-1990 passed by the Society is merely a consequential order having been passed on account of direction of the District Assistant Registrar contained in the other impugned order dated 7-7-1989. But as the Society is a private body and conditions of service of the petitioner are not governed by the Statutory Rules or Regulations it will not be appropriate for this Court to set-aside the said order of the Society. It will be open to the petitioner to make representation before the Society against the said order.
10. This writ petition is accordingly allowed with costs. The impugned order dated 7-7-1989 passed by the District Assistant Registrar is quashed. The case is remanded to the District Assistant Registrar to pass fresh order after giving a reasonable opportunity of being heard to the petitioner within six months from the date of production of certified copy of this order before him. The petitioner is directed to co-operate with the District Assistant Registrar so as to enable him to pass the order within the time specified above. It will be open to the petitioner to make representation before the Society against the order dated 7-1-1990 and if such a representation is made the same should be decided as expeditiously as possible.