Allahabad High Court
U P Processing And Construction Co ... vs Radhey Shyam Misra on 11 April, 2023
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- WRIT - C No. - 1005099 of 2009
Petitioner :- U P Processing And Construction Co Operative Federation
Respondent :- Radhey Shyam Misra
Counsel for Petitioner :- Rakesh Kumar Chaudhary
Counsel for Respondent :- C.S.C,Aftab Ahmad,Illigible,In Person(R S Mishra)
Hon'ble Rajnish Kumar,J.
1. Heard Shri Rakesh Kumar Chaudhary, learned counsel for the petitioner, learned Standing Counsel and Shri Yusuf Uz Zaman Safwi, Advocate holding brief of Shri Aftab Ahmad, learned counsel for the respondent no. 1, however, he submits that respondent no. 1 does not want to pursue the matter any further as he has retired from service.
2. This petition has been filed challenging the order dated 25.3.2009 and 19.8.2009 passed by the respondent no. 2 by means of which, appeal filed by the respondent no. 1 has been allowed and the review application filed by the petitioner has been dismissed, respectively.
3. The sole ground argued by learned counsel for the petitioner is that the respondent no. 2 has no authority to entertain and decide the appeal against the order of recovery passed by the Managing Director. He further submits that a direction for disposal of the appeal was sought from this Court by filing Writ Petition No. 49 (M/S) of 2009 without impleading the petitioner whereas the order impugned in the appeal was passed by the petitioner.
4. This Court, after considering the submission of the learned counsel for the parties, stayed the operation of the impugned orders on the grounds that under Section 3(2) of the U.P. Co-operative Societies Act, 1965, it is required by the State for conferring any of the powers of the Registrar on the Joint Registrar and only then he can exercise the powers of the Registrar, thus by virtue of appointment of Joint Registrar under Section 3(2), he has no power of the Registrar unless the same is conferred by general or special order of the State Government which is lacking in the present case, coupled with the fact that parallel proceedings on the same cause of action is pending before the Cooperative Tribunal in which same question is to be adjudicated filed a case .
5. Learned counsel for the petitioner also submits that respondent no. 1 had filed a case before Arbitrator and against the order passed by the Arbitrator, filed appeal before Co-operative Tribunal. He also filed an appeal before the Chairman of the Board on 21.5.2007 against the order dated 25.4.2007, however, before the same could be decided, the petitioner filed appeal before the Joint Registrar and he decided the appeal filed by the petitioner without considering the grounds raised by the petitioner that he has no authority to entertain and decide the appeal whereas it has been contradicted by the respondent no. 1 by filing an application under Section 340 Cr.P.C. that a false affidavit has been filed. It has also been contradicted by learned Standing Counsel, on the basis of averments made in the counter affidavit filed on behalf of the respondent no. 2, in which he has specifically stated that the petitioner has raised no objection in his reply dated 24.2.2009.
6. Learned Standing Counsel further submits that by means of Notification Dated 16.11.1995 it has been provided that the Committee of Management or Apex Committee shall not have control over the Managing Director of society and in respect of the matter enumerated under Section 31 (4) and in view of this amendment, the appeal against the order of the Managing Director does not lie before the Chairman. On the other hand, learned counsel for the petitioner submits that unless the regulation contained in Annexure-8 to the writ petition is amended the power could not have been conferred on the Joint Registrar. Even otherwise even if the Registrar has been conferred with the power, the Joint Registrar is not authorized to decided the same.
7. The respondent no. 1 has filed an application for dismissal annexing a copy of the judgment and order dated 10.1.2012 passed in Writ Petition No. 523 (SB) of 2007 (Radhey Shyam Mishra Vs. State of U.P. and Ors.), by means of which the punishment order of dismissal dated 25.4.2007 has been set aside with liberty to hold the inquiry afresh as observed by this Court.
8. It was also directed that the petitioner shall not be paid salary for the period commencing from the date of dismissal up to the date of reinstatement, which would be subject to outcome of the fresh inquiry conducted against the petitioner. Learned counsel for the petitioner has no instruction as to whether fresh inquiry has been held or not. By means of the order of recovery dated 25.4.2007, which was challenged by respondent no. 1 before the Joint Registrar, recovery of Rs. 1,15,075.00 of the period of suspension has been directed to be adjusted in the recovery amount of Rs. 3,82,488.50 in the order of punishment dated 25.4.2007, which has been quashed by this Court by means of aforesaid order dated 10.1.2012 passed in Writ Petition No. 523 (SB) of 2007.
9. Be that as it may, the order of the dismissal and recovery dated 25.4.2007 has been quashed by this Court, therefore the recovery to be made by the order of dismissal also stands quashed, in which the amount of recovery to be made in pursuance of the separate order dated 25.4.2007, against which the appeal was filed, has been adjusted. Therefore, the order dated 25.4.2007 challenged in appeal also lost its efficacy, therefore this petition has rendered infructuous.
10. In view of above, leaving the law point open for adjudication in appropriate case, this petition is dismissed accordingly.
Order Date :- 11.4.2023
Mohit Singh/-
