Ref.Recall Application This is a restoration application for recalling the order dated 23.5.2012.
The grounds taken in the affidavit filed in support of the restoration application found to be sufficient. Application is allowed. The order dated 23.5.2012 is recalled.
Office is directed to restore the case to its original number.
By means of this writ petition the petitioner is challenging the order dated 28.12.2004 whereby the petitioner was removed from service, by order dated 6.12.2004, which is a recommendation made by the District Assistant Registrar, Co-operative Societies, U.P., Kanpur Nagar recommending that since the petitioner has been found guilty by the Enquiry Officer in his enquiry report, he should be removed from service, and the order dated 30.1.2006 by which the petitioner's representation preferred under Section 128 of the U.P. Co-operative Societies Act, 1965 has been rejected.
The facts of the case, in brief, are that the petitioner was appointed on the post of Accountant in the Ordnance Parachute Factory Co-operative Society Ltd. Kanpur (the Co-operative Society) on 31.12.1981. An Administrator was appointed in the said co-operative society. The Administrator for purposes of better administration by an order dated 2.4.1991 formed a Sub Committee comprising three persons as Members. On 8.4.1992 the petitioner was given the officiating charge of the post of Secretary of the said co-operative society by the Administrator. He functioned as such till 2.2.1993.
On 10.10.1991 a first information report was lodged against the then Secretary one Sri Karan Singh, under Sections 409, 420, 467, and 471 I.P.C. at police station Rail Bazar, District Kanpur Nagar in case crime no.348 of 1991. On 24.7.1992 the Investigating Officer wrote a letter to the then Secretary Sri Umakant Tiwari demanding certain papers, which were necessary for purposes of investigation. According to the petitioner, although he had been appointed as Officiating Secretary on 8.4.1992 but charge of the said post was handed over to him by Sri Umakant Tiwari only on 28.8.1992. In this regard the petitioner had also written a letter to Sri Umakant Tiwari on 7.8.1992, a copy of which was also sent to the District Assistant Registrar, Co-operative Societies, U.P., Kanpur Nagar as well as the Administrator, Co-operative Society in question and the General Manager, Ordnance Parachute Factory Co-operative Society Ltd. Kanpur and the Investigating Officer, Sri J.P. Shukla, S.I.S. Kanpur Nagar. As stated the petitioner was ultimately given charge of the post of Secretary on 28.8.1992, which was also acknowledged by the Sub Committee by its letter dated 29.8.1992 filed as Annexure-4 to the writ petition. On 24.8.1992 the Investigating Officer, S.I.S. Kanpur Nagar submitted a final report in favour of the then Secretary Sri Karan Singh. This fact was not within the knowledge of the petitioner nor it would have been in his knowledge, since the petitioner was not concerned with the criminal investigation against Sri Karan Singh. On 11.9.1992 the petitioner handed over the concerned requisite papers to the Investigating Officer. Ultimately on 2.2.1993 the petitioner handed over charge of the post of Secretary, Ordnance Parachute Factory Co-operative Society Ltd. Kanpur to one Sri Ashok Singh.
The case of the petitioner further is that all of sudden after expiry of almost nine years the then Secretary of the co-operative society wrote a letter dated 2.1.2002 to the General Manager, Ordnance Parachute Factory Co-operative Society Ltd. Kanpur apprising him that Sri S.K.Singh, a member of the Sub Committee had not handed over the documents to the Investigating Officer. On this letter the District Assistant Registrar, Co-operative Societies, U.P. Kanpur Nagar by his letter dated 15.3.2002 directed for initiation of the enquiry against the petitioner. Accordingly, an enquiry was set up under Section 65 of the U.P. Co-operative Societies Act, 1965.
On 12.7.2002 a report was submitted by Sri Santosh Singh Yadav, the Additional District Co-operative Officer against the petitioner making allegation that the petitioner had not handed over the papers to the Investigating Officer and thus the Investigating Officer had to file a final report in the matter of the charge of embezzlement of Rs.5.62 lakhs against Sri Karan Singh, the then Secretary.
On 26.2.2003 the petitioner was placed under suspension. A chargesheet was issued to him on 22.8.2003. On 13.11.2003 the petitioner submitted his reply to the chargesheet. By an order dated 4.12.2003 the petitioner was reinstated in service, which is filed as Annexures 15 to the writ petition, with a rider that the petitioner would not indulge himself in money lending and that if in future any financial irregularities in the audit or inspection or in departmental enquiry is found against him, the disciplinary proceedings would again be initiated against him. However, on 6.12.2004 a recommendation was made by the District Assistant Registrar, Co-operative Society recommending the removal from service of the petitioner. Acting on this letter, by a letter dated 28.12.2004 the petitioner was removed from service.
The order of removal was challenged by the petitioner before this Court in Writ Petition No.32401 of 2005, which was dismissed by order dated 17.10.2005 on the ground of alternative remedy with a direction that the petitioner has an adequate remedy under Section 128 of the U.P. Co-operative Societies Act, 1965 and if he avails such remedy, the Registrar, Co-operative Society would decide his appeal/representation by a reasoned and speaking order in accordance with law within two months thereafter. In pursuance of the directions of this Court dated 17.10.2005 the Registrar, Co-operative Society, Lucknow considered the representation of the petitioner dated 5.11.205 and has rejected the same on the ground that the provisions of Section 128 of the Act are not applicable. Hence the present writ petition.
I have heard Sri Anoop Trivedi, learned counsel for the petitioner and Sri Mata Prasad, learned Additional Chief Standing Counsel for the State-respondents.
From the entire gamut of facts and documents on record, it will be seen that in the previous enquiry proceedings initiated by chargesheet dated 22.8.2003, against which the petitioner had also submitted his reply on 13.11.2003, the petitioner was reinstated in service by order dated 4.12.2003. The language of the order dated 4.12.2003 is notable and reads as follows:-
"Sri Suneel Kumar Singh, Ankik O.P.F. Cooperative Society Ltd. Kanpur ko patrank 257 dated 26.02.03 ko unke upar lage aropo ke sambandh me lilabit kiya gaya tha. Sri Singh se un aropo ke sambandh me spastikaran manga gaya. Sri Suneel Kuamr Singh ne 14.11.03 ko apna spastikaran prastut kiya aropo avam spastikaran ki samikshoprant Sri Suneel Kumar Singh Ankik ko nimn pratibandho ke sahit sewa me bahal kiya jata hai.
1.Yah ki Samitee me kisi bhi prakar ki money lending ka karya nahi karenge.
2.Yah ki kisi bhi prakar ki vittiya animitataye yadi audit, nirikshan avam vibhagiya janch ke dauran unkey virudh pai jati hai to Sri Singh ke virudh punah anshashnatmak karwahi kar di jayegi."
From a perusal of the order dated 4.12.2003, it would be seen that the explanation submitted by the petitioner on 13.11.2003 was found to be satisfactory and accepted by the Additional Co-operative Society Officer, Kanpur Nagar and it is also mentioned therein that on a consideration of the explanation the petitioner is being reinstated in service. The only rider attached was that the petitioner would not indulge in money lending and that if in future any financial irregularities are found during audit or inspection or departmental enquiry against the petitioner, disciplinary proceedings would again be initiated against him.
The language of the order dated 4.12.2003 demonstrates in no uncertain terms that the departmental proceedings initiated against the petitioner by the chargesheet dated 22.8.2003 had been concluded on his explanation to the chargesheet being found to be satisfactory. However, there is nothing on record nor there is anything apparent from the impugned order that any fresh departmental proceeding was initiated against the petitioner and suddenly a recommendation was made on 6.12.09 that the services of the petitioner be terminated. Acting on this recommendation the impugned order dated 28.12.2004 was passed terminating the services of the petitioner.
From the documents on record it will be seen that aggrieved by the order dated 28.12.2004 the petitioner filed writ petition No.32401 of 2005, which was dismissed by this Court on grounds of alternative remedy with a specific direction that the petitioner had a remedy under Section 128 of the U.P. Cooperative Societies Act, 1965 and with a further direction that if such appeal is filed, the Registrar, Co-operative Society would consider the same and pass a reasoned and speaking order in accordance with law.
In compliance of the order of this Court the petitioner had submitted his appeal on 5.11.2005 but the same was rejected by the Registrar, Co-operative Society, Lucknow by the impugned order dated 30.1.2006 on the ground that such an appeal was not maintainable under Section 128 of the Act, 1965.
Section 128 of the U.P. Cooperative Societies Act, 1965 reads as follows:-
"128. Registrar's power to annul resolution of a co-operative society or cancel order passed by an officer of a co-operative society in certain cases.- The Registrar may-
(i) annual any resolution passed by the Committee of Management, or the general body of any co-operative society; or
(ii) cancel any order passed by an officer of a co-operative society;
If he is of the opinion that the resolution or the order, as the case may be, is not covered by the objects of the society, or is in contravention of the provisions of this Act, the rules or the bye- laws of the society, whereupon every such resolution or order shall become void and inoperative and be deleted from the records of the society.
(Provided that, the Registrar shall, before making any order, require the Committee of Management, general body or officer of the co-operative society to reconsider the resolution, or as the case may be, the order, within such period as he may fix but which shall not be less than fifteen days, and if he deems fit may stay the operation of that resolution or the order during such period.)"
May be no appeal or representation was not maintainable under Section 128 of the U.P. Co-operative Societies Act, 1965 but then other than Section 128 of the U.P. Cooperative Societies Act, 1965, no other Section has been pointed out by the learned standing counsel wherein a person aggrieved by an order passed adverse to his interest, may prefer an appeal. This was considered by this Court in its order dated 17.10.2005 and thereafter that writ petition was dismissed with a further direction to submit his appeal under Section 128 of the Act and, therefore, the said appeal could not have been rejected by the Registrar on the ground that the same was not maintainable.
There is another aspect of the matter that the departmental proceedings having been concluded by the order dated 4.12.2003 by the acceptance of the explanation of the petitioner to the chargesheet, the impugned order of removal dated 28.12.2004 or the order dated 30.1.2006 could not have been passed without fresh departmental proceedings being initiated against the petitioner. Even in the enquiry report dated 15.3.2002 submitted by the District Assistant Registrar, Co-operative Society the charge of embezzlement was against the then Secretary, Sri Karan Singh and not the petitioner and the only allegation against the petitioner was that he had failed to handover papers to the Investigating Officer. The specific case of the petitioner on this point is that charge of the post of Officiating Secretary was handed over to him on 28.8.1992, which will be evidenced by the letter of Sub Committee of the Cooperative Society dated 29.8.1992 (Annexure-4 to the writ petition). The papers were demanded by the Investigating Officer from the Secretary by his letter dated 24.7.1992. On that date the petitioner had not even been given the charge of the post of Officiating Secretary. The final report was filed by the Investigating Officer on 24.8.1992 and on that date also the petitioner had not been given charge of the post of Officiating Secretary. Thus the petitioner could not have been held guilty of not handing over papers to the Investigating Officer.
Another notable aspect of this case is that the petitioner had handed over the concerned papers to the Investigating Officer on 11.9.1992 as he had no knowledge of filing of the final report. If the department wanted, it could have filed a protest petition against the final report submitted by the Investigating Officer. From the impugned orders, it is not evidenced anywhere that any protest petition was filed by the Cooperative Society against the final report submitted by the Investigating Officer and yet departmental proceedings were initiated against the petitioner after a lapse of eleven years of the incident holding him guilty of not handing over requisite papers to the Investigating Officer.
The Supreme Court in the case reported in 1990 (Supp) Supreme Court Cases 738, State of Madhya Pradesh vs. Bani Singh and another has held as follows:-
"4. The appeal against the order dated December, 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the instigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."
Thus on the conspectus of the facts and law laid down by the Supreme Court, the impugned orders dated 28.12.2004, 6.12.2004 and 30.1.2006 are quashed.
The writ petition is allowed.
There shall be no order as to costs.
Order Date :- 25.9.2012 Asha