Sita Jaiswal vs Provincial Co-Operative ...
2019 Latest Caselaw 5011 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R. 
 
Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 1584 of 2019
 

 
Petitioner :- Sita Jaiswal
 
Respondent :- Provincial Co-Operative Federation Of U.P.Lko.And Anr.
 
Counsel for Petitioner :- Shishir Chandra
 
Counsel for Respondent :- Shireesh Kumar,Shireesh Kumar
 
*****
 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Shishir Chandra, learned counsel for the petitioner and Sri Shireesh Kumar, learned counsel for the opposite parties.

2. By means of this writ petition, the petitioner has impeached the order dated 11.01.2019, passed by the Managing Director, Provincial Co-operative Federation of U.P., Lucknow, whereby the petitioner, as per learned counsel for the petitioner, has been reverted from the post and for imposing such punishment prior approval from U.P. Co-operative Institution Service Board is necessary, which has not been obtained in this case.

3. Per contra, Sri Shireesh Kumar, learned counsel for the opposite parties has submitted that the petitioner has not been reverted from the post which she was holding and she is still holding the post i.e. Junior Assistant, she has only been reverted to her basic pay, which may not be treated as reduction in rank. Therefore, the submission of Sri Shireesh Kumar is that since it is not punishment of reduction in rank, hence, no approval from U.P. Co-operative Institution Service Board is required.

4. As per Sri Shireesh Kumar, it is punishment of reduction to the basic pay not the reduction in rank as provided under 83 (e) of U.P. Co-operative Federation Ltd. (Service of Employees) Regulation, 1980. Sub-clause (e) of Rule 83 (1) of Regulation, 1980 says about reduction in rank or grade held substantively by the employees.

5. If contention of Sri Shireesh Kumar is accepted that the punishment so provided is neither reduction in rank nor grade held substantively by the employee i.e. the petitioner, then the Court is unable to comprehend as to what is this punishment provided to the petitioner inasmuch as it has nowhere been provided in the Regulation, 1980 itself.

6. It is settled proposition of law by the Hon'ble Apex Court that no punishment can be awarded against the incumbents if such punishment is not provided under Rules and if such punishment is provided that would be non est in the eyes of law.

7. The submission of learned counsel for the petitioner is that the Regulation 83 of the Regulations, 1980 provides for punishment/ penalty and clause (e) of Regulations 1983 (1) provides for penalty of reversion in rank or demotion. Whereas, Regulation 86 provides that the penalties/ punishments defined under Regulation 83 (1) (e), (f) & (g) shall not be imposed without obtaining prior concurrence of the U.P. Co-operative Institutional Service Board. Therefore, learned counsel for the petitioner has submitted that in view of the aforesaid provisions, the punishment of reversion in rank is a major punishment, which cannot be imposed or awarded without obtaining prior concurrence of the Board. It is contended that a perusal of the impugned order indicates that no approval of the Board was obtained prior to passing of the impugned order and on this ground alone, the impugned order merits to be quashed and set-aside. In this regard, learned counsel for the petitioner has placed reliance on the judgments of this Court in the cases of U.P. Upbhokta Sahkari Sangh Ltd. and another vs. Vijay Shanker Rai - 2006 (7) ADJ 585, Govind Narayan Shukla vs. State of U.P. and others - 2005 (1) AWC 439 and on an unreported judgment of this Court in the case of Satya Pal Singh vs. U.P. Cooperative Federation passed in Writ Petition No.1705 (SB) of 2015 decided on 03.11.2015.

8. In this regard, the Court may refer to the Division Bench judgment of this Court in the case of Vijay Shanker Rai (supra) wherein the Division Bench after considering the provisions of Regulation 87 (1) (e) to (g) of the U.P. Cooperative Societies Employees Service Regulations, 1975 which are parimateria to Rule 83 (1) (e) to (g) of the 1980 Rules has held as under:-

"The language of the regulation makes it clear that no penalty under sub clauses (e) to (g) of Clause (1) of Regulation 87 shall be imposed upon an employee except with the prior concurrence of the Board. Two words ''shall' and ''except are important to throw light on the effect of Regulation 87 as to whether the provision is mandatory or even a subsequent approval would be sufficient compliance of the aforesaid provision. It is not in dispute that before imposing penalty of dismissal, which is one of the penalties provided under sub clauses (e) to (g) of Clause (1) of Regulation 87, no prior concurrence of the Board were obtained. The use of word ''shall' makes it obligatory on the disciplinary authority to obtain concurrence of the Board before passing any order of penalty and the concurrence must precede the order of penalty. The use of the word ''except' mandates the appointing authority not to impose any penalty under clauses (e) to (g) of Clause (1) of Regulation 87 without prior concurrence of the Board. Where the rule framing authority simultaneously uses the words ''shall' and ''except' the intention is to make it imperative and mandatory. The language is positive as well as negative simultaneously. It makes it obligatory to the competent authority to seek prior concurrence and prevent it from passing any order without prior concurrence. The word ''except' has been defined in Webster's Third New International Dictionary to mean ''unless' or ''only'. Black's Law Dictionary, revised fourth edition, defined the words and expression ''except for' as synonymous in many cases with ''but for' and ''only for'. In the Black's Law Dictionary, sixth edition, the word ''except' has been defined as ''but for', ''only for' not including other than, otherwise than, to leave out of account or consideration. In Grolier New Webster's Dictionary, the word ''except' has been defined as apart from, excluding only. In respect to the term ''shall' it would not be necessary to burden this judgment with a catena of cases defining the same, but the settled law laid down in those cases is that the term ''shall' is a word of command and one which has always and which must be given a compulsory meaning i.e. denoting obligation. The word in ordinary usage means ''must' and is inconsistent with the concept of discretion. It has the invariable significance of excluding the idea of discretion, and has significance of operating to impose a duty, which may be enforced, particularly if a public policy is in favour of this meaning, or when addressed to public officials, or where public interest is involved, or where the public or persons have right, which ought to be exercised or enforced, unless contrary intent appears. No doubt, some times it may and has been construed merely permissive or directory, i.e. equivalent to may, to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. The para-materia provision in Regulation 101 Chapter III of the Regulation framed under the Intermediate Education Act, 1921 came up for consideration before this Court and consistently this Court has taken the view that the words ''except with the prior approval of the Inspector' under Regulation 101 makes the provision mandatory and any order passed without prior approval is void ab initio. Reference may be made Amit Kumar vs. District Inspector of Schools, Jaunpur and another, 2001 (1) AWC 242; Sharda Prasad Yadav and others vs. District Inspector of Schools, Deoria and others, 2002 (5) AWC 3822.

Recently, a Division Bench of this Court in the case of Jagdish Singh vs. State of U.P. and others, 2006 (64) ALR 17 (summary) has considered the aforesaid issue and it has held that without prior approval of the Inspector, the Principal or committee of management cannot issue an appointment letter or permit joining of any candidate. Relevant observations are reproduced as under:-

"Without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. Requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory."

We entirely agree with the view taken in the aforesaid cases. Moreover, the purpose and object requiring the management to seek prior concurrence of the Board is to protect the employee from any arbitrary and illegal punitive action on the part of the management without strictly observing procedure prescribed in the Regulations. The Board, being an independent statutory body, is expected to scrutinized the matter as to whether the proceedings have been conducted in a fair and impartial manner, consistent with the procedure prescribed under the rules and the employee is not being unduly harassed. Therefore, we are of the view that the Hon'ble Single Judge has rightly held that without prior concurrence of the Board the order of dismissal passed by the management was unsustainable and the same was liable to be quashed.

However, there is another aspect of the matter, which needs to be considered at this stage. The Hon'ble Single Judge after setting aside the order of dismissal has issued further direction to the respondents to a hold fresh inquiry against the petitioner giving him a proper opportunity of hearing and in accordance with law. We do not find from the entire judgment that the entire inquiry proceedings were found to be vitiated in law in any manner. The requirement of prior concurrence of the Board is a stage subsequent to the submission of inquiry report when the management decide to impose penalty upon the employee and such resolution is required to be sent to the Board for its prior concurrence before issuing actual order imposing penalty upon the employee. The word ''concurrence' itself presuppose a decision taken by the disciplinary authority, which before becoming an order and executable, needs concurrence by the Board. That being so and in the absence of any finding that the inquiry proceeding or the tentative decision of the management to impose punishment upon the employee is vitiated in law the direction to the appellant to hold a fresh inquiry cannot be sustained. Mere violation of Regulation 87 would not have the effect of invalidating the entire inquiry proceeding i.e. a stage before the matter is to be sent to the Board for its concurrence.

At this stage Shri Anil Bhushan, learned counsel for the respondent contended that the inquiry was conducted ex parte without giving him adequate opportunity to defend and the same was vitiated in law. However, we find that in the writ petition the petitioner-respondent has challenged the order of dismissal mainly on the ground that Regulation 87 was not observed. No other point has been pressed. Therefore, it is not appropriate at this stage to look into the question as to whether the inquiry was validly conducted or not. Moreover, this aspect is within the domain of the Board itself which is empowered to look into the procedure of inquiry, whether it is in accordance with law or not while considering the grant of occurrence under Regulation 87.

We, therefore, modify the order of the Hon'ble Single Judge and while upholding the judgment under appeal setting aside the dismissal order, modify rest of the directions and provide that the appellant is at liberty to take further action for seeking prior concurrence of the Board under Regulation 87 in accordance with rules. The Board shall consider the matter after affording opportunity of hearing to both the sides and shall take decision as expeditiously as possible, preferably within a period of three months from the date of receiving proposal, if any, from the appellant along with the certified copy of this order."

9. Likewise, this Court in the case of Govind Narayan Shukla (supra) has held as under:-

"4. Before going into the grounds raised which are based on factual controversies, I shall first consider this case on its legal aspects. In the writ petition a clear assertion has been made that before passing of the impugned order of dismissal the respondent-authorities had not obtained the prior concurrence of the Board. There is no specific denial of this assertion in the counter-affidavit. Admittedly the order of dismissal from service has been passed under Regulations 84 (1) (e) to (g) and as such in the absence of the prior concurrence of the Board no such order could have been passed as provided under Regulation 87 of 1975 Regulations. Thus, this writ petition deserves to be allowed only on this ground as the order has been passed in violation of the provisions of the Regulations."

10. Even if the arguments of Sri Shireesh Kumar is accepted whereby he has submitted that the petitioner has not been reverted from the post which she was holding and she is still holding the post of Junior Assistant as she has only been reverted to her basic pay, therefore, it cannot be treated as reduction in rank, then the impugned punishment is such punishment which is not prescribed under Regulations 1980 and in that case the impugned punishment is not liable to be sustained in view of the settled proposition of law of Hon'ble Apex Court in catena of cases whereby the Hon'ble Apex Court has held that no punishment can be awarded against the incumbent if such punishment is not provided under the Act/ Rules/ Regulations and if such punishment is provided that would be nullity in the eyes of law.

11. Therefore on both the legal aspects, firstly, if it is punishment of reduction in rank, the same could have not been issued without getting prior approval from the Board and secondly, if it is such punishment which is not prescribed under the Regulations 1980, then the punishment would be non est in the eyes of law.

12. Considering the rival submissions of learned counsel for the respective parties, perusing the material available on record and the dictum of Hon'ble Apex Court in re: Vijay Shanker Rai (supra) and Govind Narayan Shukla (supra), I am of the view that the impugned punishment order dated 11.01.2019, as contained in Annexure No.1 to the writ petition, passed by the opposite party No.2, is not sustainable in the eyes of law, therefore, the same is liable to be quashed.

13. Accordingly, the writ petition is allowed.

14. The order dated 11.01.2019, passed by the opposite party No.2, is hereby quashed.  The matter is remanded back to the opposite party No.2 to pass a fresh order strictly in accordance with law with expedition preferably within a period of three months from today.

15. It is clarified that since the impugned order dated 11.01.2019 has been quashed, therefore, the opposite parties shall permit the petitioner to submit her joining on the post in question.

16. No order as to cost.

Order Date :- 24.5.2019

Suresh/

[Rajesh Singh Chauhan,J.]