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IN THE HIGH COURT OF MADHYA PRADESH
Milind Ramesh Phadke, J.
Gulab Singh v. District Cooperative Central Bank Ltd. Gwalior and others
Writ Petition No. 1643 of 2021 (Gwalior): against the order dated 31.12.2020 passed by the Joint Registrar (Judicial), Cooperative Societies, Gwalior Division in revision;
Decided on 28.4.2023
¼1½ çkFkfed Ñf"k lk[k lgdkjh laLFkk deZpkjh lsok ¼fu;¨tu] fucaèku rFkk dk;Z fLFkfr½ fu;e] 2010 ¼e-ç-½ & fu- 28 rFkk 29 & lsoklekfIr & fofgr çfØ;k ,oa uSlfxZd U;k; d¢ fl)kar dk vuqlj.k fd, fcuk] ,di{kh; tk¡p rFkk dksjs vkj¨i¨a d¢ vkèkkj ij ;kph dh lsok lekIr dh xà & lE;d~ çfØ;k dk vuqlj.k fd, fcuk] vipkjh dk ÑR; xaÒhj vopkj gksus dk vfÒdFku djrs gq, ml ij 'kkfLr vfèkj¨fir ugÈ dh tk ldrh & mls iqu% inLFk fd, tkus d¢ fy, çR;FkÊx.k funsf'krA
vfHkfu/kkZfjr % mi;qZä fu;e¨a esa Li"V :i ls mYys[k fd;k x;k gS fd fdlh Òh vipkjh deZpkjh dks] ftl ij xaÒhj vopkj dk vkj¨i yxk;k tk jgk gS] rc rd nafMr ugÈ fd;k tk,xk tc rd fd tk¡p djus d¢ fy, çkfèkÑr O;fä tk¡p ugÈ djrk v©j tk¡p d¢ i'pkr~ ml O;fä dk n¨"kh g¨uk lkfcr ugÈ ikrkA vr% mi;qZä fu;e¨a esa fd, x, Li"V vuqcaèk d¢ ifj.kkeLo:i ;g Li"V gS fd lE;d~ çfØ;k dk vuqlj.k fd, fcuk] vipkjh dk ÑR; xaÒhj vopkj gksus dk vfÒdFku djrs gq, ml ij 'kkfLr vfèkj¨fir ugÈ dh tk ldrh] blfy,] bl U;k;ky; d¨ çrhr g¨rk gS fd ;g dkuwuh micaèk dk Li"V mYyaÄu gS rFkk uSlfxZd U;k; d¢ fl)kar dk vuqlj.k ugÈ fd;k x;k gS D;¨afd ;kph d¨ d¨Ã tk¡p&iwoZ lwpuki= ugÈ fn;k x;k Fkk vkSj u mlls mÙkj gh ek¡xk x;k Fkk] ;kph d¨ d¨Ã vkj¨ii= tkjh ugha fd;k x;k] mls viuh çfrj{kk djus dk volj ugh fn;k x;k] d¨Ã tk¡p vfèkdkjh fu;qä ugÈ fd;k x;k v©j u çLrqfrdj.k vfèkdkjh gh fu;qä fd;k x;kA ¼iSjk 21 ,oa 25½
¼2½ Òkjr dk lafoèkku & vuqPNsn 226 & e-ç- lgdkjh l¨lkbVh vfèkfu;e] 1960 & èkkjk 55 ¼2½ & vkuqdfYid mipkj dk otZu & vkdf"kZr ugÈ & ;kph dh lsok ,di{kh; tk¡p d¢ vkèkkj ij lekIr dh xà & lquokà dk volj çnku ugÈ fd;k x;k & e-ç- lgdkjh l¨lkbVh vfèkfu;e] 1960 dh èkkjk 55 ¼2½ d¢ vèkhu fookn dk mipkj miyC/k & ijarq uSlfxZd U;k; d¢ fl)kar dk vuqlj.k ugÈ fd;k x;k blfy, fjV vfèkdkfjrk d¢ vèkhu fookn xzg.k djus ds fy, vkuqdfYid mipkj dk otZu ugÈ g¨xkA
vfÒfuèkkZfjr% ;g lR; gS fd ;fn fdlh deZpkjh dh lsok 'kr¨Za d¢ lacaèk esa d¨Ã fookn mn~Hkwr g¨rk gS rks lu~ 1960 d¢ vfèkfu;e dh èkkjk 55 ¼2½ d¢ vèkhu fookn çLrqr djuk visf{kr gS v©j jftLVªkj ;k mld¢ }kjk fu;qä lgk;d jftLVªkj d¢ in ls vfuEu vfèkdkjh fookn dk fofu'p;u djsxk v©j mldk fofu'p; l¨lkbVh v©j mld¢ deZpkfj;¨a ij vkc)dj g¨xk] ijarq tSlk igys gh Åij foosfpr fd;k tk x;k gS fd ftu ekey¨a esa uSlfxZd U;k; d¢ fl)kar dk vuqlj.k ugÈ fd;k x;k gS] ogk¡ Òkjr ds lafoèkku ds vuqPNsn 226 ds v/khu fjV vfèkdkfjrk d¢ vèkhu fookn xzg.k djus d¢ fy, vkuqdfYid mipkj dk otZu ykxw ugÈ g¨xkA ¼1998½ 8 ,l lh lh 1] ¼2003½ 2 ,l lh lh 107 rFkk ¼2014½ 1 ,l lh lh 603 vuqlfjrA ¼iSjk 22½
¼3½ uSlfxZd U;k; & uSlfxZd U;k; d¢ fl)kar dk vuqlj.k fd, fcuk ;kph dh lsok lekIr dh xà & vk{ksfir vkns'k vikLr fd, x, & mls iqu% inLFk djus d¢ fy, çR;FkÊx.k funsf'krA ¼iSjk 22] 24 ,oa 25½
¼4½ lgdkjh l¨lkbVh vfèkfu;e] 1960 ¼e-ç-½ & èkkjk 80&d & 'kfä;¨a dh O;kfIr & fofgr çfØ;k dk vuqlj.k fd, fcuk ;kph dh lsok lekIr dh xà & vk{ksfir vkns'k ls fu;e¨a dk Ĩj vfrØe.k Li"V & vfÒys[k eaxk dj mldk ijh{k.k fd, fcuk] rduhdh vkèkkj ij iqujh{k.k [kkfjt djuk U;k;ksfpr ugÈ & jftLVªkj d¨ vfÒys[k eaxk dj mldk ijh{k.k djus d¢ i'pkr~ fdlh vkns'k d¨ mikarfjr ;k myVus dh i;kZIr 'kfä gS & ,slk ugÈ fd;k x;k & vk{ksfir vkns'k vikLrA ¼iSjk 23 ,oa 24½
(1) Prathmik Krishi Sakh Sahakari Sanstha Karmchari Sewa (Niyojan, Nibandhan and Karya Sthiti) Niyam, 2010 (M. P.) -- Rr. 28 and 29 -- termination of service -- without following prescribed procedure and principle of natural justice, services of petitioner terminated on ex parte inquiry and bald allegations -- without following due procedure, no penalty can be imposed upon delinquent alleging his act to be serious misconduct -- respondents directed to reinstate him.
Held : Under the aforesaid rules it has been clearly mentioned that any delinquent employee who is being charged of serious misconduct will not be punished until and unless the person authorised to conduct an enquiry and after enquiry had not found proved the person guilty. Thus, in the wake of the clear stipulation made in the aforesaid rules it is clear that without following due procedure no penalty can be imposed upon a delinquent alleging his act to be of serious misconduct, thus, it appears to this Court that this is a clear violation of a statutory provision and the principle of natural justice has not been followed as no pre-enquiry notice was given to the petitioner, nor a reply was called from him, no charge-sheet has been issued to the petitioner, no opportunity to defend himself was granted to him, no enquiry officer has been appointed, neither Presenting Officer was appointed. [Paras 21 & 25
(2) Constitution of India -- Art. 226 -- M. P.Cooperative Societies Act, 1960 -- S. 55 (2) -- bar of alternative remedy -- not attracted -- services of petitioner terminated on basis of ex parte inquiry -- hearing opportunity not provided -- remedy of dispute under section 55 (2) of Cooperative Societies Act, 1960 available -- but principle of natural justice not followed therefore alternative remedy shall not be bar for entertaining dispute under writ jurisdiction.
Held: It is true that if any dispute with regard to the service conditions of an employee arises then a dispute is required to be raised as per section 55 (2) of the Act of 1960 and the Registrar or any officer appointed by him not below the rank of Assistant Registrar shall decide the dispute and his decision shall be binding on the society and its employees, but as it has already been discussed above that cases where the principles of natural justice have not been followed, then an alternative remedy shall not be a bar for entertaining the dispute under writ jurisdiction under Article 226 of the Constitution of India. (1998) 8 SCC 1, (2003) 2 SCC 107 and (2014) 1 SCC 603 followed. [Para 22
(3) Natural Justice -- services of employee terminated without following principle of natural justice -- impugned orders set aside -- respondents directed to reinstate him. [Para 22
(4) Cooperative Societies Act, 1960 (M. P.) -- S. 80-A -- scope of powers -- services of petitioner terminated without following prescribed procedure -- flagrant violation of rules evident from impugned order -- dismissing revision on technical ground without calling and examining record not justified -- Registrar has ample power to modify or reverse any order after calling and examining record -- same not done -- impugned orders set aside. [Paras 23 & 24
ORDER
1. The present writ petition under Article 226/227 of the Constitution of India has been filed challenging the order dated 29.1.2020, whereby services of the petitioner has been terminated by the Administrator of the Primary Krishi Saakh Sahakari Sanstha Maryadit, Tiholi. Further challenge is to the order dated 31.12.2020 passed by Joint Registrar (Judicial), Cooperative Societies, Gwalior Division, whereby the revision filed under section 80 (A) of the MP Cooperative Societies Act has been dismissed as not maintainable against the order of termination, holding that the order passed by the administrator required a detailed scrutiny which cannot be done under section 80 (a) of the MP Cooperative Societies Act rather the proper scrutiny can be done under the provisions of section 55 (2) of the MP Cooperative Societies Act.
2. Challenging the aforesaid orders the present petition has been filed.
3. Brief facts of the present case are that the petitioner was initially appointed on the post of Clerk, District Cooperative Central Bank Maryadit Gwalior. That, vide order dated 29.1.2020 (Annexure P/2) under the instructions given by the higher authorities, respondent No.4 without serving any show cause notice and holding any departmental enquiry upon the petitioner terminated his service on the basis of some bald allegations and forged entries allegedly carried out by the petitioner. The petitioner was suspended and a criminal case was registered against him. The facts mentioned in the order by respondent no.4 was on the basis of some findings of exparte enquiry conducted by the enquiry team behind back of the petitioner.
4. The Registrar of M.P. Cooperative Societies in exercising his power under section 55 (1) of the MP Cooperative Socities Act, 1960 has framed “ Prathmik Krishi Saakh Sahakari Sanstha, Vrahtkar Saakh Sahkari Sanstha, Adim Jati Seva Sahkari Sanstha, Krishi Seva Sahkari Sanstha Karmchari Seva (Niyojan, Nibandhan and Karya Sthithi) Niyam (in short Karmachari Seva Niyam)” for regulating the recruitment and service condition of employees of Primary Agriculture Credit Co-operative Societies.
5. Rule 23 of the “Karmachari Seva Niyam” prescribes the incidences which constitute major mis-conduct and penalty for the aforesaid misconduct and rule 28 prescribes the procedure for conducting the enquiry for imposing penalty for serious misconducts. As per rule 28 where the allegations against the delinquent employee is of serious misconduct, the competent authority has to serve articles of charges as per Schedule 4 requiring delinquent employee to submit his reply within prescribe time and thereafter, the employee shall be permitted to defend himself. Further tule 28 prescribes that after recovering explanation from the employee, documentary evidence shall be examined and the explanation of the employee if not found satisfactory then only departmental enquiry shall be initiated against him, but in the present case no pre-enquiry procedure was followed nor any enquiry was conducted later on. But, only on the basis of some instructions, the petitioner was terminated from his service.
6. The petitioner had earlier challenged the order of his termination dated 29.1.2020 by filing a W.P. No. 3466/2020 which was dismissed vide order dated 12.2.2020 on the ground that the petitioner has an alternative and efficacious remedy under section 55 (2) of the M.P. Cooperative Societies Act, which was challenged by the present petitioner in W.A No.481/2020 by order dated 12.4.2022 wherein the writ appeallate Court has observed that the petitioner instead of preferring an alternative remedy available under M.P. Cooperative Societies Act, 1960 preferred a revision under section 18 (a) of the Act, 1960 alleging that since the order of termination was passed at the dictates of the Registrar himself then availing the remedy under section 55 (2) of the Act of 1960 would not be in efficacious alternative remedy and since against the order passed by th
Suspension of an employee under the Andhra Pradesh Cooperative Societies Act must adhere to due process and jurisdictional authority, failing which it is deemed illegal.
The regularization of service after the probation period and the inconsistency of the termination with the applicable rules led to the quashing of the termination order.
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