Krishna Pal Singh And Another vs State Of U.P. And 5 Others
2018 Latest Caselaw 3450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										   A.F.R.  
 
							 Reserved On: 24.9.2018
 
							 Delivered On :31.10.2018
 
Case :- WRIT - A No. - 16364 of 2018
 

 
Petitioner :- Krishna Pal Singh And Another
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Sujit Kumar Rai
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for the petitioners and learned Standing Counsel for the respondents.

Pleadings have been exchanged between the parties. With the consent of parties, writ petition is being decided at the admission stage itself.

By way of present writ petition, petitioners are challenging the order dated 5.6.2018 passed by respondent no.3, Additional Commissioner & Additional Registrar (Administration), order dated 23.6.2018 passed by respondent no.4, Joint Commissioner & Joint Registrar, Moradabad Division, Moradabad, order dated 2.7.2018 passed by respondent no.5, Assistant Commissioner & Assistant Registrar, Cooperative, Bijnore as well as the order dated 13.7.2018 and 14.7.2018 passed by the Secretary, respondent no.6 and further for writ of mandamus directing the respondents not to interfere in the functioning of the petitioners no.1 and 2 as Accountant and Chaukidar in Jaswantpur Akbarpur Chaugawa Sadhan Sahkari Samiti Limited, Block Naziabad, District Bijnore and to ensure regular payment of salary to the petitioners.

The case of petitioners are that the Primary Agricultural Cooperative Credit Societies (PACCS) are the primary cooperative societies registered under the provisions of the U.P. Co-operative Societies Act, 1965 (hereinafter referred to as Act, 1965) as well as U.P. Co-operative Societies Rules, 1968 (hereinafter referred to as Rules, 1968). Till date no service rules or regulations have been framed to control and govern the services of the employees of the primary agricultural cooperative credit societies. Section 29-A of Act, 1965 confers power upon Committee of Management of the Society concerned to make appointment of the officers and other staff in the cooperative society for running its business.

For perusal the provisions of Section 29-A of the U.P. Cooperative Societies Act, 1965 is quoted below:

"29-A. Special provision for Primary Agricultural Cooperative Credit Societies, Central Cooperative Banks and Apex Bank,- Notwithstanding anything to the contrary in any other provision of this Act, rules and Bye-laws of the Society, the Committee of Management of a Primary Agricultural Cooperative Credit Society or a Central Cooperative Bank or an apex bank shall exercise such powers and perform such duties as may be necessary and expedient for the purpose of carrying out its functions under this Act which shall include,-

(a) the power to,-

(viii) appoint officers or other staff to conduct the business of the society and define inter alia their duties, service conditions, leave concessions and disciplinary matters subject to the provisions of this Act, rules and the bye-laws;"

Learned counsel for the petitioners has submitted that petitioner no.1, Krishan Pal Singh has been appointed on daily wage basis by resolution of Committee of Management dated 5.11.2015 and Vipin Kumar, petitioner no.2 has been appointed on the post of Chaukidar (peon) by resolution of Committee of Management dated 7.8.2015 on daily wage basis with approval of Additional District Cooperative Officer, Naziabad and Assistant Development Officer (Cooperative) at Jaswantput Akbarpur Chaugawa Sadhan Sahkari Samiti Limited, Block Naziabad, District Bijnore.

It is submitted that the appointment of the petitioners in the society concerned has been approved vide order dated 8.1.2016 passed by the Assistant Commissioner & Assistant Registrar, Cooperative Societies, Bijnore though the approval is not required because power to make appointment is vested with the Committee of Management of the Society concerned as per section 29-A of the Act, 1965. The appointment letters have been issued to the petitioners vide order dated 9.1.2016 and 6.10.2015 to Krishan Pal Singh and Vipin Kumar respectively by the society concerned. The petitioner no.1, Krishan Pal Singh was sent for training by the Assistant Commissioner & Assistant Registrar, Cooperative Societies, Bijnore vide order dated 1.9.2016.

Learned counsel for the petitioners submitted that the services of the petitioners have been regularized vide proposal nos. 2 and 3 dated 20.9.2017. While regularizing services of the petitioners the salary has also been fixed as per recommendation of Vth Pay Commission. This fact is also noticed in the resolution dated 20.9.2017 itself.

After regularization of service of petitioners and fixation of pay scale as per recommendation of V pay Commission, one frivolous complaint was filed by Surendra Singh, Block Pramukh, Naziabad, District Bijnore about Sri Sachidanand Mishra, Additional District Cooperative Officer, Tehsil Naziabad, District Bijnore and vide order dated 5.6.2018 the Additional Commissioner & Additional Registrar, (Administration) Cooperative Societies, Lucknow directed the Joint Commissioner & Joint Registrar to cancel the appointments of petitioners Krishan Pal Singh and Vipin Kumar in Sadhan Sahkari Samiti Limited Jaswantpur and one Sri Deepak Dodwal in Sadhan Sahkari Samiti Limited Vijaypur.

It is further submitted that in pursuance of the order dated 5.6.2018 passed by the Additional Commissioner & Additional Registrar, Lucknow; the Joint Commissioner & Joint Registrar, Cooperative Societies, Moradabad Division Moradabad directed the Assistant Commissioner & Assistant Registrar to cancel the appointments of the aforesaid three employees vide its order dated 23.6.2018.

Learned counsel for the petitioners submitted that after orders dated 5.6.2018 and 23.6.2018 the Assistant Commissioner & Assistant Registrar vide order dated 02.07.2018 has directed the secretary of the society concerned to cancel the appointments of the employees.

It is also submitted that in compliance of the orders dated 5.6.2018, 23.6.2018 and 02.07.2018, appointment of the petitioners have been cancelled by the Secretary of the society vide order dated 13.7.2018 and 14.07.2018.

He further submitted that while entertaining the writ petition the Hon'ble Court was pleased to put three specific queries vide its orders dated 31.7.2018 that (1) under which authority the Registrar, Cooperative Societies directed termination of services of an employee of the cooperative society (2) whether before dispensing with the services of the petitioners show cause notice have been given to the petitioners, (3) whether the order of termination have been passed by the Committee of Management of the Society concerned.

Counter affidavit has been filed by the State, but none of the pointed queries are replied by the respondent nos. 3 to 5.

He further submitted that there is no provision under the Act, 1965 and Rules, 1968 which empowers Registrar to direct an officer to terminate the service of employee of the Primary Agricultural Cooperative Credit Society because as per section 29-A, entire power is vested with the Committee of Management to make appointment, to take decision about the terms and conditions of the service, to initiate disciplinary proceeding and to award punishment to the employees of cooperative society. Therefore, as per first query, respondent nos. 3 to 5 have no authority to issue direction of termination of services of petitioners.

With regard to second query, learned counsel for the petitioner contended that order is absolutely in violation of natural justice without providing opportunity of hearing. From perusal of the order dated 13.07.2018 it does not reflect that any show cause notice or any explanation has been called by the respondents before terminating services of the petitioners. He further contended that order has been passed without initiating any departmental proceeding and without issuing any show cause notice. Therefore not sustainable in the eye of law.

In support of his contention, he placed reliance upon the judgments of Apex Court in the cases of Sravan Kumar Jha Vs. State of Bihar, Nisa Devi vs. State of Himachal Pradesh and others and Jaswant Singh vs. State of Madhya Pradesh and others.

He further argued that so far as third query of the Court is concerned that Committee of Management of Society has passed the order or not. In the present case order dated 13.7.2018 passed by the Secretary of the Society in compliance of the orders passed by the Superior Officers and does not reflect that any decision has been taken by the Committee of Management which is competent authority to take decision about the employees of the cooperative society.

He further placed reliance upon the Division Bench judgment of this Court in case of Smt. Kusum Srivastava reported in (2018) 2 UPLB&EC 1253, in which this Court has clearly held that order of termination in question was not passed by the Committee of Management by resolution, therefore, order is bad and set aside.

It is also argued that in the impugned order dated 5.6.2018, the Additional Commissioner & Additional Registrar has mentioned that appointments has been made in violation of circular C-24 dated 27.07.2009. It is further submitted that this circular is not having the statutory force, but only a guideline which indicates that the cooperative society is itself competent to make appointment and in case, there is any problem, only then he may take help from other institutions. Even otherwise, there is no whisper in impugned order that which provisions of circular C-24 dated 27.07.2009 is violated.

He further submitted that thereafter Commissioner/Registrar (Cooperative) has issued another circular C-106 dated 8.12.2014 after taking note of circular C-24 dated 27.7.2009. Aforesaid Circular C-106 was challenged before this Hon'ble Court by way of filing Writ Petition No.47311 of 2016 (Chandra Mohan Singh and another Vs. State of U.P. And 3 others). After exchange of the pleadings, writ petition was allowed and the circular C-106 dated 8.12.2014 has been quashed vide judgment and order dated 28.3.2018. The circular was quashed on the ground that the Act, 1965 does not provide power to Registrar, Cooperative Societies to issue circular for regulating the services of the employees of the cooperative societies and being contrary to Section 29-A of the Act, 1965. This shelter of circular C-24 dated 27.7.2009 which favours the petitioners cannot be a ground to cancel the appointments made by the cooperative societies in conformity with the power provided under Section 29-A of the U.P. Cooperative Societies Act, 1965.

Learned Standing Counsel appearing for the respondents has rebutted the submission made by the learned counsel for the petitioners. According to him, the appointment of petitioner no.1 was made on 5.11.2015 vide resolution No. 6 of Committee of Management on the post of Assistant Accountant/Salesman on temporary basis on which recommendation was made by the Assistant Development Officer and approval was made by Assistant Commissioner & Assistant Registrar without following rules and regulations given by the Committee. He further stated that appointment have been made without following rules and regulations, therefore, the appointment of the petitioners have been rightly cancelled.

In the counter affidavit, there is no averment about the petitioner no.2.

In rejoinder argument, learned counsel for the petitioner has stated that the query raised by this Court vide order dated 30.7.2018 has not been replied by the respondent nos. 3 to 5 in the counter affidavit, which shows that orders have been passed without having authority and in violation of natural justice. Further, nowhere it is stated in impugned order and counter affidavit that which rules and regulations are violated.

I have considered the rival submissions advanced the learned counsel for the parties and perused the records and judgment relied upon the petitioners as well as provisions of U.P. Co-operative Societies Act, 1965 as well as U.P. Co-operative Societies Rules, 1968.

Vide earlier order of this Court dated 31.7.2018, this Court has clearly directed to learned Standing Counsel to seek instructions on the following points:-

(i) Under what authority order has been passed by the Additional Registrar for dismissing the petitioner from service.

(ii) Whether any show cause notice have ever been given to the petitioner before terminating his services.

(iii) Whether the order of termination have been passed by the Committee of Management of the Society concerned.

I have perused the counter affidavit filed by the State, none of the question raised by this Court has been replied in the counter affidavit even there is no whisper about the queries raised by the Court vide order dated 31.07.2018.

Apart from that there is clear cut averments made by learned counsel for the petitioner in paras 24 to 27 of the writ petition that the petitioners were confirmed regular employees and without recourse of the disciplinary proceeding, their appointment cannot be cancelled. Further no opportunity of hearing has been provided before cancelling the appointment of the petitioners and also stated that appointing authority and disciplinary authority of the petitioners are the Committee of Management of Society as provided in Section 29-A of the Act, 1965 and Committee of Management has not initiated any action against the petitioners, but only on direction of the higher authorities, appointment of petitioners has been cancelled, therefore, orders impugned are in contravention with Section 29-A of the Act, 1965.

In the counter affidavit, content of para 24 to 27 has been replied in para 23 to 25 in the counter affidavit and there is no denial of facts mentioned in aforesaid paragraphs of the writ petition.

Earlier circular C-24 dated 27.7.2009 was issued framing certain instructions. Thereafter considering circular C-24 dated 27.7.2009, Commissioner & Registrar, Cooperative Society has issued another circular C-106 dated 8.12.2014 providing the service conditions with regard to appointment, promotion etc. in Cooperative Societies. The said circular was challenged in Writ Petition No.47311 of 2016 (Chandra Mohan Singh and another Vs. State of U.P. And 3 others). This writ petition was allowed by judgment and order dated 28.03.2018 and circular C-106 dated 8.12.2014 was quashed on the ground that the Act does not provide power to Registrar, Cooperative Societies to issue circular for regulating the services of the employees of the Cooperative Societies being contrary to Section 29-A of the U.P. Cooperative Societies Act. Relevant paragraphs of this judgment are quoted below:-

"Under Section 29-A of the U.P. Cooperative Societies Act, 1965 the Primary Agricultural Co-operative Societies Act have been given powers to regulate the functioning, terms and conditions of the employees and the manner of business which cannot be curtailed by a circular, which is not in accordance with the powers vested in the statute.

In view of the above, the circular dated 08.12.2014 issued by respondent no.2/ Commissioner & Registrar, Cooperative Societies, U.P., Lucknow and the order dated 23.02.2016 passed by respondent no.3 / Assistant Commissioner & Assistant Registrar, Cooperative Societies, U.P. Firozabad are illegal and hereby quashed."

In light of legal and factual position, this fact is very much clear that absolute power lies with the Committee of Management of Cooperative Societies as provided in sub-Section 29-A of Act, 1965 and order of termination has not been passed by the Committee of Management of Society by its any resolution, but only on the dictate of Superior Officers, Secretary of Committee of Management of Society has passed the impugned order.

Apart from that, impugned order is factually incorrect as it is ignoring this fact that services of the petitioners are regularized way back in the year 2017 by Committee of Management vide resolution dated 20.09.2017 after approval granted by the Assistant Commissioner & Assistant Registrar, Bijnore vide orders dated 8.1.2016 and 6.11.2015. There is no denial of this fact in counter affidavit.

Further, once the services of petitioners were regularized, law is very well settled that without initiating departmental proceedings as well as issuing charge sheet and show cause notice, services of any employee cannot be terminated. In present case services of petitioners have been terminated without initiating any departmental proceedings and without issuing charge sheet or show cause notice, which is in gross violation of natural justice.

Learned counsel for the petitioner has placed reliance upon the judgment of Apex Court in the case of Shrawan Kumar Jha Vs. State of Bihar 1990 (SC) 672, relevant paragraph of this judgment is quoted herein below:

"3. By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U. R. Lalit and Mr. A. K. Ganguli, learned Senior Advocates, appearing for the appellants have controverted these allegations and have dated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period."

Learned counsel for the petitioner has also placed reliance upon the judgment of Apex Court in the case of Nisha Devi Vs. State of H.P. & Ors. Reported in 2014 SC 142, relevant paragraph of this judgment is quoted herein below:-

"5. Trite though it is, we may yet again reiterate that the principle of audi alteram partem admits of no exception, and demands to be adhered to in all circumstances. In other words, before arriving at any decision which has serious implications and consequences to any person, such person must be heard in his defence. We find that the High Court did not notice the violation and infraction of this salutary principle of law. Accordingly, on this short ground, the impugned Judgments and Orders require to be set aside, and are so done. The matter is remanded back to the Divisional Commissioner for taking a fresh decision after giving due notice to the Appellant and affording her an opportunity of being heard. The Divisional Magistrate, Kullu, shall complete the proceedings expeditiously, and not later than six months from the date on which a copy of this Order is served on him."

Learned counsel for the petitioner has further placed reliance upon the judgment of Apex Court in the case of Jaswant Singh Vs. State of Madhya Pradesh reported in 2000 SC 950, relevant paragraph of this judgment is quoted herein below:-

"The appellants having been appointed pursuant to the order of Panchayat and having been continued as LDC since February 1987, no order under sub-section (1) of Section 83 of the Adhiniyam could have been passed by the Collector wihout affording the opportunity of hearing to them. Admittedly, the opportunity of hearing has not been given. The impugned order of cancellation, therefore, stands vitiated. We, therefore, set aside the order of the High Court as well as the order of cancellation passed by the Collector." therefore on the ground of violation of natural justice, this order of termination is liable to be set aside."

In light of the observation made herein above, this fact is very much clear that first of all, the respondent nos. 2 to 6 have no authority to terminate the services of petitioners as in light of Section 29-A of the U.P. Cooperative Societies Act, 1965, authority lies with the Committee of Management of Society. Therefore, order is not sustainable in eye of law

Second thing is that by perusal of record, this fact is also clear that services of petitioners have been regularized by Committee of Management and termination order has been passed without initiating any departmental proceedings and without issuance of any show cause. Therefore, on this ground too, order is also not sustainable as it is in gross violation of natural justice and liable to be set aside.

Legal position is also very well settled by this Court in the cases mentioned herein above that authority of passing order of termination lies with the Committee of Management as provided in Section 29-A of the Act, 1965 and not with the respondents and, therefore, termination order is wholly without jurisdiction and liable to be set aside.

Therefore, under such facts and circumstances of the case and settled position of law, orders dated 5.6.2018 passed by respondent no.3, Additional Commissioner & Additional Registrar (Administration), order dated 23.6.2018 passed by respondent no.4, Joint Commissioner & Joint Registrar, Moradabad Division, Moradabad, order dated 2.7.2018 passed by respondent no.5, Assistant Commissioner & Assistant Registrar, Cooperative, Bijnore as well as the order dated 13.7.2018 and 14.7.2018 passed by the Secretary, respondent no.6 are hereby quashed. Respondents are directed to permit the petitioners to join their service and pay them salary on month to month basis.

Accordingly, the writ petition is allowed. No order as to costs.

Order Date :- 31.10.2018

Junaid