Uttarakhand High Court

Sunny Chaudhary vs State Of Uttarakhand And Others on 1 May, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

     HIGH COURT OF UTTARAKHAND AT NAINITAL

                  Writ Petition (S/S) No. 1466 of 2021

Sunny Chaudhary                                                ........Petitioner

                                    Versus

State of Uttarakhand and others                           ........Respondents

                                    With

                  Writ Petition (S/S) No. 1289 of 2021

Aashu Kumar                                                    ........Petitioner

                                    Versus

State of Uttarakhand and others                           ........Respondents


Present:-
       Mr. Shobhit Saharia, learned counsel for the petitioners.
       Mr. Narayan Dutt, learned Standing Counsel for the State.

Hon'ble Pankaj Purohit, J. (Oral)

Since common question of law and facts are involved in these writ petitions, therefore these are being heard and decided by this common judgment.

2. In both these writ petitions, the order of termination of services of the petitioners is under challenge which, according to the petitioners, has been passed without affording any opportunity of hearing to them.

3. Both the petitioners are employed with respondent no.3- Jhabreda Kisaan Seva Sahkari Samiti Ltd. as Clerk. An FIR No.0256 of 2020 was lodged in Police Station Jhabreda, District Haridwar against unknown persons by in-charge Secretary of Jhabreda Kisaan Seva Sahkari Samiti Ltd. In the said FIR it was disclosed that the informant in- charge Secretary-Talwar Singh gave to the petitioner Anshu Kumar and Ramesh Chand, Accountant ₹20,29,900/- and to petitioner Sunny

Chaudhary ₹2,32,340/- for depositing in District Co-operative Bank Ltd. Haridwar, Branch Jhabreda.

4. According to the informant after 5 to 7 minutes of leaving office of respondent no.3 they came back in the office and when asked by the informant immediately after two minutes both Ashu Kumar (petitioner) and Ramesh Chandra rode in the motorcycle for Bank. Around 5 minutes later Ramesh Chandra made a call to the informant that two unknown motorcycle borne persons showing tamancha (a country made pistol) to them robbed the said money from them. On this information the in-charge Secretary of Jhabreda Kisaan Seva Sahkari Samiti Ltd lodged the aforesaid FIR. On this information investigation ensued by the Police and on the basis of the statement recorded under Section 161 Code of Criminal Procedure, 1973, it was found by the Investigating Officer that the story of loot was concocted by the petitioners along with their accomplice. Respondent no.3 vide its resolution dated 25.06.2020 (Annexure no.1) decided to terminate the services of the petitioners and on the resolution made by respondent no.3 services of the petitioners were terminated.

5. The petitioners have challenged the aforesaid termination order mainly, on the sole ground that before terminating services of the petitioners no enquiry was conducted, even no show cause notice was issued to the petitioners and only on the basis of FIR and investigation conducted by the Police, services of the petitioners were terminated abruptly without any disciplinary proceeding or enquiry. In substance contention of the petitioners was that the principles of natural justice have not been adhered to.

6. A counter affidavit has been filed by respondent no.3, which does not reflect at all as to whether before terminating services of the petitioners any disciplinary proceedings/enquiry was conducted by respondent no.3. The counter affidavit filed by respondent no.3 gave an impression that only on the basis of the FIR and confessional statement

of the petitioners and recovery of certain amounts from them during investigation, services of the petitioners have been terminated.

7. Apart from factual aspect it has also been contended by respondent no.3 that the writ petition is not maintainable as respondent no.3 is a co-operative society. It is also case of respondent no.3 that petitioners made confession of their guilt during investigation and that certain amount of money was recovered from them.

8. A rejoinder affidavit has also been filed and in the rejoinder affidavit the main contention of the writ petitioner has been reiterated so far as maintainability of writ petition is concerned. It is contended that the impugned order/resolution passed by respondent no.3 is absolutely illegal, irregular, arbitrary and utter in violation of principal of natural justice, which can be assailed by invoking the discretionary jurisdiction of this Court in Article 226 of the Constitution of India.

9. It is also stated in the rejoinder affidavit by the petitioners that services of the petitioners are duly governed by the Rules framed under the U.P. Co-operative Societies Act, 1965 which are still attracted and are effective even after coming into force of Uttarakhand Co- operative Societies Act, 2003.

10. Heard learned counsel for the parties.

11. Learned counsel for the petitioners mainly assailed the order/resolution of terminating services of the petitioners on the ground that before passing resolution/order terminating services of the petitioners no enquiry worth name has been conducted by respondent no.3 and only on the basis of existence of FIR the petitioners have been thrown out of their services.

12. It is further contended by learned counsel for the petitioners that services of the petitioners are governed by The U.P. Co-operative Societies Employees Service Regulations, 1975 framed under the erstwhile U.P. Co-operative Societies Act, 1965, which are still saved by

saving clause as well as under the provisions of General Clauses Act, 1897. More so it is also argued that even if it is admitted that the petitioners are working with respondent no.3 in regular establishment since 2014 their services cannot be terminated without adhering to the principle of natural justice.

13. Mr. Narayan Dutt, learned Standing Counsel for the State argued on many things, but he has got no answer to the fact that as to whether the disciplinary enquiry was resorted to before terminating services of the petitioners.

14. The thrust of his argument is only and mainly on the maintainability of the writ petition.

15. Having heard learned counsel for the parties and perusal of the record, it is established beyond doubt that before terminating services of the petitioners no domestic enquiry, disciplinary enquiry conducted or principle of natural justice have been adhered to.

16. Since there is a glaring defect in the procedure adopted by respondent no.3 while sacking petitioners out from their services and an order of termination have been passed without affording any opportunity of hearing to the petitioners, the argument of availability of alternate remedy would not appeal to this Court.

17. It has been settled by Hon'ble Apex Court in catena of judgments that alternate remedy is not an absolute bar in exercising discretionary jurisdiction of this Court under Article 226 of the Constitution of India.

18. Since in the case in hand there is glaring defect while passing the impugned termination of the petitioners, this Court resort to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India to do justice.

19. The upshot of the aforesaid discussion results into quashing of the impugned termination orders/resolution dated 25.06.2020 (Annexure no.3), passed by respondent no.3 against the petitioners. However respondent no.3 is given a liberty to proceed departmentally in full-fledged discretionary proceedings against the petitioners, in accordance with law.

20. The writ petitions are accordingly allowed. Impugned orders dated 25.06.2020 are hereby quashed. Respondent no.3 is directed to reinstate the petitioners immediately as Clerk with it. However respondent no.3 is at liberty to proceed against the petitioners, in accordance with law, by initiating full-fledged disciplinary proceeding against them.

(Pankaj Purohit, J.) 01.05.2024