Virendra Kumar Gupta S/O Laxmi ... vs State Of U.P. Thru Secy. ...
2015 Latest Caselaw 1497 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Case :- SERVICE BENCH No. - 614 of 2009
 

 
Petitioner :- Virendra Kumar Gupta S/O Laxmi Kant Gupta
 
Respondent :- State Of U.P. Thru Secy. Cooperative & Others
 
Counsel for Petitioner :- Anupam Mehrotra
 
Counsel for Respondent :- C.S.C.,Mahendra Pratap Singh,Shireesh Kumar
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Akhtar Husain Khan,J.

(Delivered by Hon'ble Akhtar Husain Khan,J.)

Present petition has been filed by petitioner, Virendra Kumar Gupta, under Article 226 of the Constitution of India with following prayers:-

(I) Issue a writ, order or direction in the nature of certiorari setting aside the impugned order dated 4.2.2009 passed by the Managing Director, U.P. Cooperative Federation Limited ("PCF") contained in Annexure No.1 to the petition along with orders/actions incidental and consequential thereto.

(II) Issue a writ, order or direction in the nature of certiorari setting aside the impugned letter dated 12.1.2009 claimed to have been issued by the Secretary, U.P. Cooperative Institutional Service Board ("Board") communicating to the PCF the concurrence of the Board for petitioner's dismissal from service and also set aside the order or decision of the Board giving the said concurrence, if any, after summoning the record from the PCF and the Board or otherwise.

(III) Issue a writ, order or direction in the nature of mandamus commanding the PCF, its authorities, officers and all concerned to allow the petitioner to continue with his service with the PCF and perform his duties, along with all incidental and consequential benefits of continuous service including full back wages, free from any adverse effect of impugned order dated 4.2.2009 (supra) or the related actions, departmental or otherwise, declaring the said actions to be a nullity and void ab initio.

(IV) Award cost in favour of the petitioner.

Parties have exchanged affidavits.

We have heard learned counsel for petitioner as well as learned Standing Counsel and learned counsel for opposite parties no.2 and 3.

Learned counsel for petitioner contended that vide impugned order dated 4.2.2009 annexure-1 to the petition passed by Managing Director, U.P. Cooperative Federation Limited; opposite party no.2, petitioner has been awarded penalty of dismissal from service along with penalty of recovery of Rs.17,52,464.58/-, the amount of pecuniary loss alleged to have been caused by petitioner.

Learned counsel for petitioner contended that U.P. Cooperative Societies Employees' Service Regulations, 1975 is applicable on opposite party no.2 and regulation 84 of said Regulations provides that only one of penalties prescribed in it may be awarded to the employee, who has committed breach of duty enjoined upon him or has been convicted for criminal offence or an offence under Section 103 of the Act or does anything prohibited by said Regulation. Therefore, two penalties awarded by opposite party no.2, is contrary to provisions of said Regulation 84.

Learned counsel for petitioner further contended that the impugned order dated 4.2.2009 has been passed in violation of provisions of regulation 85 of said Regulations as well as principle of natural justice without proper opportunity of hearing and enquiry.

Learned counsel for petitioner contended that neither the petitioner was furnished relevant documents during enquiry nor he was permitted to produce witnesses in his defence.

Learned counsel for petitioner further contended that penalty awarded to petitioner is too harsh and excessive.

Learned counsel for petitioner has placed reliance upon

following pronouncements :

(1) (1999) 1 Supreme Court Cases 741, U.P. State Cooperative Land Development Bank Ltd. versus Chandra Bhan Dubey and others

(2) (2005) 6 Supreme Court Cases 289, Supriyo Basu and others versus W.B. Housing Board and others.

(3) (2002) 5 Supreme Court Cases 111, Pradeep Kumar Biswas versus Indian Institute of Chemical Biology and others.

(4) (2005) 7 Supreme Court Cases 565, Gurcharan Singh versus Registrar, Cooperative Societies, H.P. and others.

(5) (2005) 6 Supreme Court Cases 657, Binny Ltd. and another versus V. Sadasivan and others.

(6) (2004) 4 Supreme Court Cases 460, Printers (Mysore) Ltd. verus M.A. Rasheed and others.

(7) Writ Petition No. 297 (SB) of 2000 S.R. Tyagi versus ` Principal Secretary to Government of U.P. and others.

(8) 1982 UPLBEC 89, Radha Charan Sharma versus U.P. Cooperative Federation and others

(9) 1982 UPLBEC 95, Navjiwan Kisan Intermediate College Mawana, District Meerut and another versus Narendra Mohan Gupta.

Learned Standing Counsel as well as learned counsel for opposite parties no.2 and 3 contended that impugned order has been passed in accordance with law after due enquiry. Strictly in accordance with provisions of U.P. Cooperative Societies Employees' Service Regulations, 1975 as well as The U.P. Cooperative Federation Ltd. Employee Service Rules, 1980.

Learned Standing Counsel as well as learned counsel for opposite parties no.2 and 3 contended that chargesheet containing nine charges were served on petitioner whereupon petitioner filed reply. Thereafter, enquiry was concluded by enquiry officer in accordance with said regulations and rules after proper opportunity of hearing to petitioner.

Learned counsel for opposite parties no. 2 and 3 as well as learned Standing Counsel further contended that Enquiry Officer has recorded findings in his enquiry report that charges nos. 1, 2, 4 and 8 levelled against petitioner are proved; whereupon show cause notice dated 17.10.2006 was served on petitioner. Petitioner filed his reply. He was heard in person also. Thereafter considering all facts and evidence as well as contention of petitioner, impugned penalty order has been passed by opposite party no.2 after having received prior concurrence of board required by regulation 87 of said regulations of 1975.

Learned counsel for opposite parties no.2 and 3 as well as learned Standing Counsel contended that two penalties have been awarded to petitioner keeping in view Rule 83 of the U.P. Cooperative Federation Ltd. Employee Service Rules, 1980.

We have considered submissions made by learned counsel for the parties.

Learned counsel for petitioner has referred above Judicial pronouncements mentioned at serial number 1 to 5 to show maintainability of this writ petition.

Learned Standing Counsel as well as learned counsel for opposite parties no.2 and 3 have not disputed maintainability of this writ petition. Therefore, we need not to go further on this issue.

After having gone through affidavits of parties as well as records of case, it is apparent that enquiry has been conducted and concluded in accordance with provisions of Regulations of 1975 and sufficient hearing has been given to petitioner. Findings recorded by enquiry officer as well as by disciplinary authority are based on evidence. We are of the view that it is not proper to disturb findings recorded by enquiry officer as well as by disciplinary authority.

Now we shall see as to whether imposition of two penalties on petitioner is contrary to law.

Section 122 of the U.P. Cooperative Societies Act, 1965 appears relevant to quote below:

"122. Authority to control employees of co-operative societies:- (1) The State Government may constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of co-operative societies, or a class of co-operative societies, and may require such authority or authorities to frame Regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employees and, subject to the provisions contained in Section 70, settlement of disputes between an employee of a co-operative society and the society.

(2) The Regulations framed under sub-section (1) shall be subject to the approval of the State Government and shall, after such approval, be published in the Gazette, and take effect from the date of such publication and shall supersede any Regulations made under Section 121."

It is an admitted fact that the State Government has constituted the Uttar Pradesh Cooperative Institutional Service Board (the Service Board) and with the approval of the Governor of State of Uttar Pradesh this Service Board has promulgated Regulations called the U.P. Cooperative Societies Employees' Service Regulations, 1975 which were published in the U.P. Gazette dated 6.1.1976. The said regulations are applicable with effect from the date of their publication in the U.P. Gazette.

In the case of U.P. State Cooperative Land Development Bank Limited versus Chandra Bhan Dubey and others (Supra), after having considered provisions of Section 122 of U.P. Cooperative Societies Act, 1965 as well as U.P. Cooperative Societies Employees' Service Regulations, 1975 framed under Section 122 of U.P. Cooperative Societies Act, 1965, Hon'ble Apex Court has held that under Regulation 102, a cooperative society is empowered to frame service rules for its employees which, however, are to be subject to the provisions of the said Regulations.

Regulation 102 of U.P. Cooperative Societies Employees' Service Regulations, 1975 reads as follows:

"102. (1) Subject to the provisions of these regulations, a co-operative society shall within three months from the date of coming into force of these regulations (unless an extension of time is allowed by the Board in writing frame service rules for its employees.

(ii) The service rules framed under sub-section (i) shall be submitted to the Board for approval and shall be operative only after the approval.

(iii) Notwithstanding anything contained in these Regulations the existing employees shall have an option to continue to be governed by the existing service rules, if any, in the society only in respect of their emoluments and benefits or to opt the new service rules on these matters.

Explanations :- (1) Provisions relating to pay, increments and allowances (other than travelling allowance), provident fund and gratuity shall be deemed as included in the term "emoluments and benefits".

(2) In case of any doubt or dispute in interpretation in respect of the matter mentioned in (1) above, reference shall be made to the Board whose decision shall be final.

(3) Existing service rules means authentic service rules framed by and with the approval of the competent authority. "

In view of above pronouncement of Hon'ble Apex Court rendered in the Case of U.P. State Cooperative Land Development Bank Ltd. versus Chandra Bhan Dubey and others (supra) as well as above Regulation 102, it is apparent that U.P. Cooperative Federation Ltd. Employees' Service Rules, 1980 have been framed in pursuance of Regulation 102 of said Regulations of 1975 and are subject to said Regulations. Therefore, in case of conflict between said Regulations of 1975 and said Service Rules of 1980 Regulations of 1975 shall prevail.

Regulation 84 of Chapter VII of Regulation 1975 deals with penalties. Regulation 84 is reproduced below:

"Penalties.--(i) Without prejudice to the provisions contained in any other regulation, an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under Section 103 of the Act or does anything prohibited by these regulations shall be liable to be punished by any one of the following penalties :

(a) censure.

(b) withholding of increment.

(c) fine on an employee of Category IV (peon, chaukidar etc.),

(d) recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the Co-operative Society by the employee's conduct,

(e) reduction in rank or grade held substantively by the employee,

(f) removal from service, or

(g) dismissal from service."

Rule 83 of Chapter VII of U.P. Cooperative Federation Ltd. Karmchari Seva Niyamawali. 1980 also deals with penalties. Said Rule 83 is reproduced below:

^^1 fdlh vU; lsok fu;e esa fn;s x;s micU/kksa ij izfrdwy izHkko Mkys fcuk fdlh deZpkjh dks tks vius drZO;ksa dk dkbZ mYya?ku djrk gS ;k n.M vijk/k vf/kfu;e dh /kkjk 103 ds v/khu fdlh vijk/k ds fy;s fl) nks"k gqvk gS ;k lsok fu;ekoyh }kjk izfrf"k) dksbZ dk;Z djrk gS] rks mls fuEu 'kkfLr;ksa esa ls ,d ;k vf/kd 'kkfLr;ksa }kjk nf.Mr fd;k tk ldsxk A

¼d½ fuUnk]

¼[k½ osru o`f) ij jksd]

¼x½ Js.kh 4 ds fdlh deZpkjh ¼pijklh] pkSdhnkj vkfn½ ij tqekZuk]

¼?k½ deZpkjh ds vkpj.k }kjk QsMjs'ku dks gksus okyh fdlh /ku laca/kh {kfr dks iw.kZr;k vFkok vkaf'kd :i ls {kfriwfrZ djus ds fy;s osru ;k izfrHkwfr ls olwyh]

¼M-½ deZpkjh }kjk ekSfyd :i esa /k`r ij ;k Js.kh esa voufr]

¼p½ lsok ls gVk;k tkuk] rFkk

¼N½ lsok ls inP;qr

¼2½ n.M ds vkns'k dh izfrfyfi vfuok;Zr% lEc) deZpkjh dks nh tk;sxh vkSj deZpkjh ds lsok vfHkys[k esa bl vk'k; dh izfo"V dh tk;sxhA

¼3½ fuUnk djus ds vykok dksbZ Hkh 'kkfLr rc rd vkjksfir ugha dh tk;sxh tc rd f d deZpkjh ds dkj.k crkus dh uksfVl u ns nh xbZ gks vkSj ;k rks og fofufnZ"V le; ds Hkhrj mRrj nsus esa vlQy jgk gks vFkok mRrj n.M nsus okys vf/kdkjh }kjk vlarks"ktud ik;k x;k gksA

¼4½ ¼d½ vkjksfir deZpkjh dks leqi;qDr izkf/kdkjh }kjk vijk/k dh xEHkhjrk ds vuqlkj n.M fd;k tk;sxk%

izfrcU/k ;g gS fd [k.M ¼1½ ds mi[k.M ¼M-½] ¼p½ ;k ¼N½ ds v/khu dksbZ 'kfDr vuq'kklfud dk;Zokgh fd;s fcuk vkjksfir ugha dh tk;sxhA

¼[k½ dksbZ deZpkjh ml izkf/kdkjh ls ftlds }kjk og fu;qDr fd;k x;k Fkk fHkUu fdlh izkf/kdkjh }kjk rc rd gVk;k ;k inP;qr ugha fd;k tk;sxk tc rd fd fu;qDr izkf/kdkjh us ,sls vizkf/kdkj dk izfrfu/kk;u ,sls vU; O;fDr ;k izkf/kdkjh dks fyf[kr :i esa igys gh u dj fn;k gksA

¼5½ fu;qDr izkf/kdkjh ;k mlds }kjk izkf/kd`r O;fDr osru o`f) jksdus dk vkns'k nsrs le; ml vof/k dk tc rd ds fy;s og jksdh xbZ gS vkSj bldk fd D;k mlls Hkfo"; dh osru o`f);ka vFkok inksUufr LFkfxr gksxh] mYys[k djsxkA

No doubt Rule 83 of Service Rules, 1980 provides imposition of one or more penalties but Regulation 84 of Regulations of 1975 permits imposition of only one penalty and in view of conclusion drawn above it is apparent that Regulations of 1975 shall prevail over service Rules, 1980.

In view of above we are of considered opinion that imposition of two penalties on petitioner is contrary to law. We are of the view that opposite party no.2 should be given option to decide as to which of the penalties he wants to maintain. Case is remanded back to opposite party no.2 to pass order accordingly after giving opportunity of hearing to petitioner.

Writ petition is disposed of with above direction.

 
Order Date :- 28.7.2015
 
Rabindra Kumar 
 

 
                 (Akhtar Husain Khan,J.)     (Shri Narayan Shukla,J.)