JUDGMENT D. K. Seth, J.
1. Services of the petitioner were terminated by an order dated 2.1.1990 which has since been challenged by means of the present petition. The said order is Annexure A-7 to the writ petition,
2. Preliminary objection was raised on behalf of the respondents that no writ lies against the co-operative society, In which the petitioner was engaged since service of the petitioner is not covered by U. P. Co-operative Societies Employees Service Regulations, 1975. Admittedly, by reason of the decision of the Full Bench in 1982 UPLBBC 89, no writ lies against a co-operative society which is not obliged to discharge statutory obligations, therefore, if the petitioner's services are not governed by statutory rule, then the writ is not maintainable. Admittedly, the said regulation was applicable in the co-operative society in which the petitioner was employed. However, by virtue of notification dated 17.11.1979, U. P. Co-operative Institutional Service Board ceased to operate regarding the recruitment, training and disciplinary control of the employees of the Apex Level Milk Society, i.e., Pradeshik Co-operative Dairy Federation, Central or Primary Milk Societies, whose area of operation extends to more than one district or State and Co-operative Milk Unions including Kanpur Cooperative Milk Board. Admittedly, the respondent-co-operative society is one of these societies. The said notification dated 17.11.1979 is very much applicable in the present case. Relying on this notification, Mr. G. D. Misra, learned counsel for the respondent, contends that the petitioner is not covered by the said regulation and, therefore, the respondent-society has no statutory obligations to discharge in relation with petitioner's service.
3. Mr. S. Rai, learned counsel for the petitioner, relying on an order dated 17th September, 1981 Issued by the Milk Commissioner filed as Annexure S.A. 1 to the supplementary affidavit filed today, points out that until fresh regulation is framed, 1975 Regulations shall be deemed to be applicable. Therefore, petitioner's service is very much governed by the said Regulation and thereby it is amenable to writ jurisdiction.
4. It appears from the notification dated 17,11.1979 that only U. P. Cooperative Institutional Service Board was ceased to operate regarding, recruitment, training and disciplinary control of the employees. It does not say that 1975 Regulations shall cease to operate. On the contrary, it is only the Institutional Service Board which ceased to operate, thereby it means that the jurisdiction which was due to be exercised by the Institutional Service Board, can be exercised by the authority managing such society, whose Jurisdiction was taken away and conferred on the Institutional Service Board by virtue of 1975 Regulations. By reason of the said notification, the jurisdiction of the Committee of Management or controlling authority of the society, was revived and restored within the ambit of 1975 Regulations. The said fact stands clarified by reason of the communication or letter Issued by the Milk Commissioner dated 17th September, 1981 contained in Annexure S.A. 1 to the supplementary affidavit filed today. Even without clarification as observed earlier, the said Regulations remained applicable which was only specifically mentioned. Therefore, it is not that by virtue of the said order (S. A. 1), 1975 Regulation is applicable but by virtue of the notification dated 17.11.1979, the application of 1975 Regulation was never withdrawn. Then again in the counter-affidavit, it has been urged that the services of the petitioner were terminated according to 1975 Regulation on account of absconding of the petitioner from service. During the course of his arguments, learned counsel for the respondent, had drawn my attention to Regulation 85 (ii) (b) of 1975 Regulations that services of an employee can be terminated without holding any disciplinary proceeding if he had absconded within the meantlng of clause (b) aforesaid. Therefore, preliminary objection cannot be accepted and is accordingly overruled.
5. It is alleged by the learned counsel for respondents that the petitioner having been a temporary employee, his services could very well be terminated without holding enquiry In view of the decision in the case of State of U. P, v. Kaushal Kishore Shukla, 1991 (62) FLR 350.
6. Admittedly, the petitioner was employed on 11.8.1972 as Is admitted In paragraph 4 of the counter-affidavit wherein it has been stated that he was field-supervisor on temporary basis. The order of termination is being passed on 1990. It is not alleged nor any case has been made out in the counter-affidavit to the effect that the petitioner was temporary employee within the meaning of U. P. Temporary Government Servants (Termination of Service) Rules. 1975. Inasmuch as that the petitioner was holding a temporary post. Even if the petitioner was appointed on temporary basis against permanent or substantive vacancy, in that event, his services cannot be terminated In the manner as suggested by the learned counsel for the respondents. Then again, whether such order of termination could be passed after such long time, is also a question which requires attention.
7. Admittedly, the petitioner had worked for 18 years. By reason of such long service, it cannot be said that the petitioner remained in a temporary post till then. Therefore, it is not possible to accept the contention made on behalf of the respondents that petitioner's services could be terminated simplicitor under the provisions of U. P. Temporary Government Servants (Termination of Service) Rules. 1975.
8. It is next contended by the respondents that the petitioner had absconded from his duty with effect from 15th September. 1989. A registered letter was sent to him on 11.11.1989 asking him to report for duty within 15 days, failing which disciplinary action would be taken against him Including termination of his service. In paragraph 11 of the counter-affidavit, detailed statement in regard thereto has been made in the said paragraph, it has also been pointed out that the said letter came back unserved with the remark 'refused'. Services of the petitioner was terminated by an order dated 2.1.1990. The said order was published In 'Dainik Jagran' on 8.1.1990. A registered letter was again sent to the petitioner, again returned undelivered. It was admitted in the said paragraph that the petitioner had reported for duty at Ghazipur on 30.12.1989, but he could not be allowed to join because a notice had already been given to him by letter dated 11.11.1989 and the time stipulated therein had already expired. Therefore, the Manager at Ghazipur had no authority to allow the petitioner to Join without approval of the appointing authority. The fact that the petitioner had come with the Joining report dated 30.12.1989 to the Head Office on 5.1.1990 is also admitted in the said paragraph but he could not be allowed to join because in the meantime service of the petitioner was terminated by order dated 2.1.1990. It is further admitted that the petitioner had submitted an application in the Head Office on 5.1.1990. It is further admitted that on 5.1.1990 the petitioner was told by the General Manager (Administration) that decision on his application dated 5.1.1990 would be communicated to him by post but since his service was already terminated, therefore, he would not be allowed to join. Subsequently, by a registered letter dated 2.5.1990 the petitioner was Informed that a notice was published on 8.1.1990 which was wrongly printed as 8.2.1990.
9. In these facts, it is to be seen as to whether the case fits in Regulation 85 (ii) (b). Regulation 85 (ii) (b) provides as follows :
"85. Disciplinary proceedings.--(1) The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer referred to In clause (iv) below with due observance of the principles of natural justice for which it shall be necessary-
.....
.....
(2) (a) Where an employee is dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge ; or
(b) Where the employee has absconded and his whereabouts are not known to the society for more than three months ; or
(c) Where the employee refused or falls without sufficient cause to appear before the Inquiring Officer when specifically called upon in writing to appear : or
(d) Where it is otherwise (for reasons to be recorded) not possible to communicate with him the competent authority may award appropriate punishment without taking or continuing disciplinary proceedings."
10. Thus, it appears that in order to terminate service of an employee, disciplinary proceeding is to be taken against him. By clause (ii) an exception is carved out. The conditions specified in the said clause (ii) enables the authority to terminate service without taking recourse to the disciplinary proceedings. Under clause (b) quoted above if an employee absconds or his whereabouts are not known for more than three months, his service could be terminated.
11. In the present case, the petitioner remained absent from 15th September. 1989 and the alleged period of three months would expire on 15th December, 1989. Here, a question may be raised as to whether the said period of three months is to be counted from the date or on the basis of the month after the month of ascension. It is not necessary to go into this question because the order appears to have been Issued on 2.1.1990, Therefore, the contention of Mr. Rai that even provision of Regulations of 1975 has not been compiled with, is not necessary to be gone Into. However, it is to be seen as to whether the petitioner was absconding and his whereabouts were not known to the society for more than three months. The registered letter dated 11.11.1989 came back with the remark 'refused'. Therefore, even in the month of November, 1989 it cannot be said that petitioner's whereabouts were not known. Refusal Indicates that the petitioner was very much present at the address, to which the letter was sent. Thus, three months cannot be said to be completed on 2.1.1990, the date of the impugned order. That apart, the petitioner had reported for duty on 30.12.1989 which fact is admitted by the respondents. Thus, it can at best be held either to be overstaying of leave or unauthorised absence. The facts revealed cannot be interpreted to mean that the petitioner had absconded. If he has overstayed leave or was absent without authority, in that event, the same cannot be brought under the purview of clause (1) (ii) aforesaid to terminate service of the petitioner without taking recourse to proceedings. Therefore, termination without disciplinary proceedings cannot be suspended in the background of admitted facts and circumstances of the case. Then again, it appears, even if the said notices are taken to be sufficient and the petitioner did not prefer to reply, In that event order could have been passed (for the sake of argument) without holding disciplinary proceedings, still then on account of unauthorised absence, punishment of termination would be too severe and harsh.
12. However, in the present case, in the counter-affidavit no case has been made out except that as pointed out in the letter dated 11.11.1989. When the said letter was issued, it was never conceived that the petitioner had absconded. On the other hand, having known his whereabouts, the letter was duly addressed to his home address which returned unserved with the remark 'refused', which we suppose that whereabouts of the petitioner were known till return of the said letter. This fact can never be brought within the purview of clause (ii) (b).
13. Both learned counsel have relied on various decisions In support of their respective contentions.
14. Mr. Rai, learned counsel for the petitioner, had relied on decision in the case of Santosh Kumar Srivastava v. Pradeshik Co-operative Dairy Federation Ltd, and others, (1997) 2 UPLBEC 812. In the said case on facts, it was found that the petitioner did not abscond and, therefore, It was held that termination could not be justified under Regulation 85 (ii) (b) of the Regulation.
15. Another decision cited by Mr. Rai in the case of Rajesh Kumar Tripathi v. State of U. P, and another, (1993) 1 UPLBEC 425, does not help him in the facts and circumstances of the present case. Other decision cited by him Is that of Prem Chand v. Registrar, Co-operative Societies, U. P., 1997 (29) ALK (55) (SOC) 33. In the said case also, the question of abscission was considered and on facts, it was found that there was no abscission and thus termination under clause (b) aforesaid could not be justified.
16. Thus, it appears that regulation 85 (ii) (b) is attracted only when the two conditions mentioned therein are satisfied. The factum of absconding of the employee and absence of the knowledge of his whereabouts with the society for more than three months, are twin conditions which must exist simultaneously to clothe the competent authority with the power to award punishment to the employee without taking recourse to or continuing disciplinary proceeding. Mere absconding of the employee cannot be sufficient to Justify the dispensation of requirement of enquiry unless both the twin conditions are present.
17. Mr. G. D. Mishra, learned counsel for respondents, relied on the decision in the case of U. P. Co-operative Spinning Mills Federation Ltd, v. Pukh Raj Mantri, 1995 (70) FLR 841, in support of his contention that the petitioner having absconded, he is not entitled for any back wages even if he is reinstated. But the said case does not help the respondents in the facts and circumstances of the present case Inasmuch as in the said case, it was withdrawal of resignation tendered by the employee which Is not the case here. Mr. Mishra also relied on the decision in the case of the Managing Director, U. P. Warehousing Corporation and others v. Vijay Narayan Vajpayee, AIR 1980 SC 840, in support of his contention that while sitting in writ jurisdiction, the High Court does not act as an appellate authority but only in supervisory capacity exercising revisional jurisdiction, therefore, it cannot quash the order of dismissal unless it is found illegal. Even if It can quash, it cannot give any positive direction for payment to the employee full back wages. This can only be done by the Industrial Tribunal, in the said case It was held :
"18..... Thus, in matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution, over the orders and quasi-judicial proceedings of an administrative authority--nor being a proceeding under the Industrial/Labour law before an industrial/labour tribunal--culminating in dismissal of the employee, the High Court should ordinarily, in the event of the dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as a consequence of the annulment of the dismissal, the position as it obtained Immediately before the dismissal is restored) such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court......"
18. From the said decision. It appears ordinarily the High Court should not direct grant of full back wages.
19. In the present case also as it appears from the facts and circumstances as observed earlier, the order terminating service of the petitioner cannot be Justified. It is, therefore, hereby quashed and it is declared that the petitioner would be entitled to all service benefits to which he would have been entitled treating this order hereby quashed not to have been in existence on account of its being void by the reason of observations made above. Such benefits shall be made available to the petitioner within a period of six months.
20. The writ petition, thus, stands finally disposed of. No order as to costs.