Arati Patel vs State Of U.P. And 6 Others
2019 Latest Caselaw 688 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No.-28
 
Case :- WRIT - A No. - 2102 of 2019
 
Petitioner :- Arati Patel
 
Respondent :- State of U.P. And 6 Others
 
Counsel for Petitioner :- Bachchu Lal Yadav, Ashutosh Pandey
 
Counsel for Respondent :- C.S.C., Devendra Pratap Singh
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Shri B.L. Yadav, learned counsel for petitioner, learned Standing Counsel for respondent Nos.1 and 2 and Sri Devendra Pratap Singh, learned counsel for respondent Nos. 3 to 5.

2. Petitioner has assailed suspension order dated 21.01.2019 passed by respondent No.4.

3. Petitioner is a Cadre Secretary posted at Kolana Sadhan Sahkari Samiti Ltd., Block Narainpur (Chunar), District Mirzapur. An inspection was made in the Society on 04.1.2019 by Branch Manager, District Co-operative Bank Ltd., Mirzapur Branch, Kailhat at around 11.00 a.m. Certain shortages were found by him in the fertilizers stock of society. A report was submitted by Branch Manager.

4. The District Administrative Committee on 15.01.2019 through Resolution No.4 took a decision for suspending the petitioner, who was a Cadre Secretary with immediate effect and the charge was given to one Dinesh Kumar Singh, Secretary, Kharka Newada, Sadhan Sahkari Samiti Ltd., Block Narainpur, District Mirzapur. The said board resolution was communicated by the Member Secretary by order dated 21.01.2019.

5. Contention of petitioner is that discrepancies so found during inspection on 4.01.2019 was immediately made good on the next day and the amount was deposited in District Co-operative Bank Ltd., Mirzapur. Further, it is submitted that on a complaint made to the District Magistrate, an enquiry was ordered and the Assistant Commissioner-cum-Assistant Registrar, Co-operative Societies, Mirzapur submitted a report on 01.02.2019 and a clean chit was given to petitioner that he had deposited entire amount as shown by Branch Manager in its inspection report dated 04.01.2019 on the very next day, i.e., 05.1.2019 as such no action needs to be taken against petitioner.

6. Shri B.L. Yadav, counsel for petitioner has relied upon judgment of Apex Court in case of U.P. State Co-operative Land Development Bank Ltd. versus Chandra Bhan Dube and others, 1998 Law Suit (SC) 1175. He further submits that order impugned dated 21.01.2019 has been passed by Member Secretary of the District Administrative Committee and as such it is in violation to Rule 14(5) of the U.P. Primary Agricultural Co-operative Credit Societies Centralized Service Rules, 1976 (hereinafter called as Rules, 1976).

7. Shri Devendra Pratap Singh, learned counsel for respondent Nos. 3 to 5 has filed a detailed counter affidavit stating that the District Administrative Committee in its meeting dated 15.01.2019 by resolution No.4 has suspended the petitioner. Further, the order dated 21.01.2019 is a consequential communication by the Member Secretary. He further submits that the suspension order was already passed on 15.01.2019 and the District Magistrate had no authority under the Act to get the matter inquired from the Assistant Registrar-cum-Assistant Commissioner, Co-operative Society, Mirzapur and the report so submitted was on 01.02.2019, i.e., after the date of suspension. He further contended that under Regulation 59 (g)(ii) of the U.P. Primary Agricultural Co-operative Societies Centralized Service Regulation, 1978 any person so suspended can move for his revocation. He submits that petitioner should appear before the District Administrative Committee and make an application for his revocation of suspension on the ground as available to him.

8. Shri Singh has relied upon orders of this Court in Writ-A No.2110 of 2012 (Shiva Nand Singh Versus State of U.P. and others) and Writ-A No.45584 of 2014 (Tarun Kumar versus Committee of Management, District Co-operative Bank Ltd). Shri Singh further contends that the present petition is not maintainable on the ground that petitioner has a remedy under Regulation 59(g) of the Regulation, 1978.

9. In rejoinder, B.L. Yadav, counsel for petitioner submits that alternative remedy is not an absolute bar, he submits that prior to inspection on 04.01.2019, the petitioner on 03.01.2019 had made deposits with the District Co-operative Bank Ltd., Mirzapur and again on 05.01.2019 has made the said deposits. Thus, the allegation that he has kept the money of the fertilizers with him and had not deposited the same in the Bank is factually wrong. He further invited the attention of the Court to page no.23 of the rejoinder affidavit.

10. Having heard learned counsel for the parties and after perusing the entire records of the case and going through the relevant provisions of the Rules and Regulations so applicable in the case, I find that the order of suspension dated 21.01.2019, specifically mentions that the petitioner was suspended by the District Administrative Committee in its meeting dated 15.01.2019 through resolution no.4 as such the ground taken by petitioner that Member Secretary has to take concurrence of the Assistant Registrar before passing the suspension order does not have any legs to stand.

11. Further this Court in case of Tarun Kumar (supra) followed the judgment of this Court in case of Mahendra Pal versus District Co-operative Bank, Saharanpur and after taking note of the said judgment held as under:

"I have heard the rival submissions of the parties and perused the record.

This Court in Mahendra Pal Singh (supra) held as follows:-

"Learned counsel for the respondent referred to the judgment dated 6.2.1991 in Civil Misc. Writ Petition No. 3634 of 1991 whereby Hon'ble Mr. Justice R.R.K. Trivedi was pleased to consider the identical provision of Regulation 59(g) or U.P. Primary Agricultural Credit Societies Centralized Service Regulation 1978 and has been pleased to hold that the said provision amounts to an efficacious alternative remedy. Upon considering the language of the Regulation 59(g) as also the provision of Regulation 85 (ix) it appears that the language is absolutely identical and accordingly following the said principle as decided in the aforesaid writ petition by Hon'ble R.R.K. Trivedi,J. and upon the finding therein I find no material for refusing to apply the said principle of alternative remedy. Accordingly I dismiss the present writ petition on the said ground of existence of alternative remedy. There will be no order as to costs. I make it clear that this order will not prejudice the petitioner if he approaches the said forum provided by the said Regulation 85(ix) of the U.P. Cooperative Societies Employees' Service Regulation, 1975. If the petitioner approaches under the said provision the appropriate authority is expected to dispose of the same as expeditiously as possible."

Accordingly, this Court is not inclined to interfere with the impugned order of suspension. The petition is being decided in the terms of judgment and order dated 19th January, 1995 passed in Writ Petition No. 1554 of 1995 (Mahendra Pal Singh vs. District Cooperative Bank, Saharanpur).

The writ petition is, accordingly, dismissed on the ground of alternative remedy."

12. Further this Court in case of Ayodhya Rai and others versus State of U.P. and others, 2006(3) ESC 1755 (All) had occasion to consider the suspension of Cadre Secretary as well as to consider the provisions of Rules of 1976 and Regulations of 1978, held as under:

15. Regulations, 1978 have been framed by the State Cadre Authority under Rule 7 of 1976 Rules with the prior approval of the Registrar.

16. Regulation 59(f) confers power upon the District Committee or any other Officer authorized for the purpose to place a member of Centralised Service other than one who is on deputation, to place him under Suspension, in certain circumstances, prescribed thereunder. Regulation 59(1)(a) and (f) is reproduced as under:

"59. Disciplinary proceedings.- (1)(a) The disciplinary proceedings against a member shall be conducted by the Inquiring Officer referred to in clause (b) below with due observance of the principles of natural justice for which it shall be necessary that;

(f) A member other than one referred to in clause (e) above may be placed under suspension by the District Committee or any other officer authorized for the purpose in the following circumstances-

(i) then the said authority is satisfied that a prima facie case exists, which is likely to result in the removal, dismissal or reduction in rank of the member;

(ii) when an inquiry into his conduct is immediately contemplated or is pending and his further continuance on his post is considered detrimental to the interest of the society or the authority;

(iii) when a complaint against him of any criminal offence is under police investigation for which he has been arrested or he is undergoing trial in a court of law for an offence under the Indian Penal Code, U.P. Co-operative Societies Act, 1965 or any other Act or charges have been proved against him by a Criminal Court.

Provided that during suspension the member shall be entitled to a subsistence allowance equal to one-third of his pay:

Provided further that a member who is under suspension on the date of coming into force of these regulations shall continue to draw such proportion of his pay and such allowance as he was allowed to draw for the period of suspension.

Provided also that no payment of the subsistence allowance shall be made unless the member has furnished a certificate and the authority passing the order of suspension is satisfied that the member was not engaged in any other employment, business, profession or vocation and had not earned remuneration therefore during the period of his suspension;

(iv) if the period of suspension extends beyond six months for no fault of the member concerned, the subsistence allowance shall be increased to half of his pay;

(v) when a member is reinstated the authority competent to order the reinstatement shall make specific order regarding pay and allowance to be paid for the period of suspension and whether or not the said period shall be treated as a period spent on duty:

Provided that where the authority passing the order of reinstatement is of the opinion that the member has been fully exonerated or the suspension was wholly unjustified, the member shall be given the full pay and allowance to which he would have been entitled, had he not been suspended."

17. A cumulative reading of Rule 13 of 1976 Rules and Regulation 59(1)(f) of 1978 Regulations, makes it clear that the power of suspension is to be exercised by District Committee itself or any officer authorised for the purpose. There is no requirement of seeking prior approval from the Assistant Registrar.

18. The learned counsel for the petitioners has placed reliance in support of his submission that the District Administrative Committee could not have exercised the power of suspension without prior concurrence of the Assistant Registrar upon a Division Bench judgment of this Court in the case of Giriwar Prasad Tripathi v. District Assistant Registrar Cooperative Societies and others, 1982 UPLBEC 611. Rule 13 (3) of 1997 Rules empowers a Chairman to suspend a member of centralised service with prior concurrence of Assistant Registrar. Rule 14 empowers the Member Secretary of the District Administrative Committee to suspend a member of centralized service. However, Regulation 59 of 1978 Regulations empowers the District Administrative Committee or any other officer authorized for the purpose to suspend a member in certain circumstance. Ex facie all the provisions travel on different fields. In Giriwar Prasad Tripathi (supra), this Court noticed the aforesaid position as apparent from the following observations in para 3 of the judgment:

"Such different intention will be clearly inferred from the specific provisions contained in Rules 13 and 14 where the power of suspension in one case has been given to the Chairman to be exercised with the prior concurrence of the Assistant Registrar and in the other case, the Member-Secretary will also exercise the power subject to the same condition of concurrence of the Assistant Registrar. All these provisions indicate a different intention and therefore, it cannot be said that the appointing authority could still exercise the powers of suspension even in the face of specific provisions in different terms in the same rules, namely, Rules 13 and 14." (emphasis added).

13. Further, argument of Shri Yadav to the extent that Assistant Commissioner-cum-Assistant Registrar, Co-operative Societies has submitted a report on 01.02.2019 in favour of petitioner could not be accepted on the ground that the said report has come subsequent to board resolution dated 15.01.2019 and the consequential order dated 21.01.2019. Further, if the petitioner wants to rely on the said report, she has a remedy of approaching the District Administrative Committee under Regulation 59(g)(ii) for getting her suspension revoked.

14. As the action taken by respondent-Authorities are not in violation of any of the Rules or Regulations as contemplated, I find no ground for interference in order of suspension under challenged. However, it is open to petitioner to approach the District Administrative Committee for getting her suspension revoked under the relevant resolutions of 1978.

15. Further, it is expected that the entire disciplinary proceedings against petitioner shall be concluded, as expeditiously as possible, preferably within a period of four months from the date of production of certified copy of this order.

16. The writ petition stands disposed of.

Order Date :- 07.03.2019

A.N. Mishra