Suryakant Dubey vs The State Of Madhya Pradesh
2023 Latest Caselaw 21634 MP

Madhya Pradesh High Court

Suryakant Dubey vs The State Of Madhya Pradesh on 18 December, 2023

                                                              1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE VINAY SARAF
                                              ON THE 18 th OF DECEMBER, 2023
                                               WRIT PETITION No. 6207 of 2023

                           BETWEEN:-
                           SURYAKANT DUBEY S/O SHRI REVARAM DUBEY, AGED
                           ABOUT 57 YEARS, OCCUPATION: SAHAYAK SAMITI
                           PRABANDHAK VILLAGE DHANA TEHSIL AND DISTRICT
                           SAGAR (MADHYA PRADESH)

                                                                                       .....PETITIONER
                           (BY SHRI ANIL LALA - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 THE SECRETARY CO OPERATIVE DEPARTMENT
                                 MANTRALAYA VALLABH BHAWAN, BHOPAL
                                 (MADHYA PRADESH)

                           2.    THE    DEPUTY  REGISTRAR CO OPERATIVE
                                 SOCIETIES SAGAR DISTRICT SAGAR (MADHYA
                                 PRADESH)

                           3.    AD M IN ISTR ATOR PRATHMIK KRISHI SAKH
                                 SAHAKARI SAMITI MYDT. DHANA DISTRICT
                                 SAGAR (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                           (BY SHRI KAMALNATH NAYAK- PANEL LAWYER
                           BY SHRI RAKESH KUMAR KESHARWANI- CAVEATOR )

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

With the consent of the parties, heard finally.

By the present petition filed under Article 226 of the Constitution of India, petitioner has challenged the order dated 22.02.2023 passed by the

Prashashak, Prathmik Krishi Saakh Sahkari Samiti Maryadit, Dhana, District- Sagar, whereby the Administrator has dismissed the petitioner from the post of Assistant Manager.

Learned counsel for the petitioner submits that the order dated 22.03.2023 is without jurisdiction and in the light of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1, petition is maintainable despite availability of alternative remedy.

Learned counsel for the petitioner submits that the allegations against the petitioner are in respect of violation of Rule 23 (XIV), (XXIX) and (XXXIII) of Prathmik Krishi Saakh Sahkari Sanstha Ke Karachari Seva Niyam. Rule 27

provides that any action against Assistant Manager for violation of Rules 23 and 24, the competent authority will be Manager. However, the respondent no.3 has passed the order of dismissal usurping the power of Manager, whereas he was not competent to punish the petitioner. It is further argued that the Administrator is an officiating incharge and he has been appointed by way of ad-hock arrangement, therefore, he has no right to perform the statutory function of taking disciplinary action against the officers of the Cooperative Society. Learned counsel for the petitioner has prayed for quashment of order dated 22.02.2023 and prayed for issuance of necessary direction for reinstatement of the petitioner.

Per contra, learned counsel for the respondent no.3 Administrator submitted that the petitioner was appointed by Selection Committee of the Board of Director and therefore, the Administrator is empowered to terminate the services of the petitioner. Petitioner has committed fraud, embezzlement and there are serious economic charges of economic offences against the petitioner, therefore, after issuance of notice and affording an opportunity of hearing to the

petitioner, the order of dismissal was passed in consonance with the Rules and petition is liable to be dismissed.

He further argued that the petitioner is having a remedy under the provisions of Madhya Pradesh Co-operative Societies, Act 1960 but instead of availing the efficacious alternative remedy, petitioner has directly approached this Court under Article 226 of the Constitution of India and therefore, the present petition is liable to be dismissed.

Learned counsel for the respondent further argued that vide circular dated 16.06.2021, Registrar, Co-operative Societies has issued direction that Administrator will be competent to take disciplinary action against the employees of the Co-operative Societies, those are involved in the act of fraud, embezzlement and other financial irregularities and therefore, the Administrator was duly competent to pass the order. He prayed for dismissal of the petition.

Heard learned counsel for the parties and perused the record. It is not in dispute that the petitioner was working on the post of Assistant Manager, Co-operative Societies and the respondent no.3 was appointed as Administrator to act in place of Board of Director of the Societies. According to Rule 27, the competent authority to take action against the Assistant Manager is Manager of the said society and not the Administrator.

Learned counsel for the petitioner has placed reliance on the order

passed in W.P.No.7088/2021 decided on 06.12.2023 (Komal Prasad Basene Vs.State of M.P. and others), whereby the co-ordinate Bench has set-aside the order of termination passed by the Administrator on the ground that as per Rule 27 of Prathmik Krishi Saakh Sahkari Sanstha ke Karachari Seva Niyam, Administrator is not competent to take action against the employees of the

Society. The relevant part of the order reads as under:-

"2. The petitioners, who are working as Accountants, Assistants Clerks and Choukidars are aggrieved by the similar orders passed by the Administrator and communicated by Manager. One such order dated

28.3.2018 (Annexure P-1) shows that pursuant to a decision by Administrator, the Manager has decided to terminate the services of the petitioners. This order is called in question on twin grounds :-

(a) As per the Rule 27 of the Services Rules filed by the respondent nos. 3 and 4, the competent authority to terminate the services of Accountants is Board of Directors, whereas for remaining petitioners it is Manager. The Manager is very much available, which is clear from the impugned order dated 28.3.2018 (Annexure P-1), which is communicated by Manager and, therefore, the impugned order is passed by an incompetent authority. In that event, in the light of judgment of Supreme Court in the case of Whirlpool Corporation vs Registrar Of Trade Marks, Mumbai & others-(1998) 8 SCC- 1}, the petitioners may not be relegated to avail the alternative remedy.

(b) As per Rule 28 of the said rules, punishment can be imposed only after holding an enquiry and in the instant case without holding any enquiry punishment is passed.

3. Shri Ritweek Parashar, learned Govenrment Advocate for the State and Shri Pravesh Naveriya, learned counsel for the respondent nos. 3 and 4 supported the impugned order but could not substantiate that decision to terminate the petitioners was taken after holding enquiry and by competent authority, i.e. the Manager. Instead, impugned order dated 28.3.2018 (Annexure P-1) is only communicated by the Manager, whereas decision is taken by the Administrator. There is no material on record to show whether

any fulfledged enquiry as contemplated in the Rules was conducted.

4. Accordingly, all the impugned orders are set aside. Liberty is reserved to the respondents to proceed against the petitioners in accordance with law."

Learned counsel for the petitioner further relied upon the order passed by the co-ordinate Bench of this Court in W.P.No.6965/2023 on 11.04.2023 in the matter of Khet Singh Lodhi Vs. State of M.P. and others, whereby in the similar circumstances, the co-ordinate Bench has stayed the operation of the impugned order. The relevant part of the order is read as under:-

"By the instant petition, petitioner is challenging the order of his termination. He relied upon the service rules of the society filed as Annexure- P-2 in which Manager (Prabandhak) has been prescribed as a competent authority to take appropriate action imposing minor and major punishment against salesman and as such any punishment imposed by other than the competent authority according to him is illegal.

Despite granting time to State to seek instruction no specific reply has come except the circular dated 16/06/2021 in which it is mentioned that the administrator is competent authority to take appropriate action in the interest of the society exercising power under Section 49 of Co-operative Societies Act, 1960 but that instruction does not contain whether in presence of competent authority i.e Manager (Prabhandk) action can be taken by the administrator."

In view of the provisions of Rule 27 of the Rules the competent authority to take action against the Assistant Manager is the Manager. It is not the case of the respondents that the Manager is not available and Administrator is

performing the duties of the Manager also. The co-ordinate Benches have already decided the issue that the Administrator is not the competent authority to take disciplinary action against the Assistant Manager.

Resultantly, the present petition is allowed and the impugned order dated 22.02.2023 passed by the respondent no.3 Administrator is hereby set-aside. Petitioner is entitled for reinstatement. However, liberty is granted to the respondents to initiate action against the petitioner afresh in accordance with Rules.

(VINAY SARAF) JUDGE sh