Lal Bahadur Singh vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Sri Amar Murti Shukla, learned counsel for the petitioner and Sri T.A. Khan, learned Senior Counsel appearing on behalf of the respondent-

Sugar Mill.

The jurisdiction of this Court has been invoked by the petitioner, an officiating Chief Engineer of the Kichha Sugar Mill (third respondent), aggrieved

by the order passed by the second respondent dated 09.06.2020. He seeks a writ of mandamus directing and commanding the respondents to permit

the petitioner to perform his duties as the In-charge Chief Engineer; and to direct the respondent-authorities to pay him salary and other allowances as

and when they become due.

Facts, to the limited extent necessary, are that the petitioner was initially appointed as an Assistant Engineer on 13.03.1989. He opted for the State

of Uttarakhand and was, thereafter, posted at Bazpur Co-operative Sugar Factory. His services were transferred in the year 2008 to Nadehi Sugar

Mill. In 2012, the petitioner was promoted to the post of Deputy Chief Engineer, and was posted at Bazpur Co-operative Sugar Factory. His services

were again transferred to Kisan Sahkari Sugar Mill, Gadarpur, District Udham Singh Nagar, in the year 2015, and from there to Nadehi Sugar Mill in

the same year. His post was upgraded, by order dated 28.04.2017, as In-charge Chief Engineer, and he was posted at Kichha Sugar Mill, where he

joined duty on 08.05.2017. By the order impugned in the writ petition dated 09.08.2020, the secondâ€"respondent placed the petitioner under

suspension, and appointed an Inquiry Officer who, in turn, issued a charge-sheet.

The jurisdiction of this Court has been invoked by the petitioner complaining that the second-respondent lacked jurisdiction to place the petitioner

under suspension since, by proceedings dated 09.09.2013, such a power is conferred only on the Administrator; and the power to issue a charge-sheet

is conferred only on the disciplinary authority, and not on the Enquiry Officer.

In so far as the first contention is concerned, the Uttar Pradesh Co-operative Sugar Factories Federation Ltd., Employees Service Regulations,

1988 (for short the “1988 Regulationsâ€) were made by the State Government in the exercise of the powers conferred by Section 122(2) of the

Uttar Pradesh Co-operative Societies Act, 1965. These Regulations are statutory in character and have the force of law. They deal, among others,

with suspension, penalties and disciplinary proceedings.

Regulation 51(3) of the 1988 Regulations stipulates that an employee may be placed under suspension by the appointing authority. Regulation 2(b)

of the 1988 Regulations defines ‘Appointing Authority’ to mean the Managing Director of the Federation. Regulation 2(m) of the 1988

Regulations defines ‘Managing Director’ to mean the Managing Director of the Federation. Regulation 2(g) of the 1988 Regulations defines

‘Committee of Management’ to mean the Committee of Management or the Administrator to which the management of the affairs of the

Federation is entrusted under Section 29 of the Act.

On a conjoint reading of Regulation 2(b) & (m) with Regulation 51 of the 1988 Regulations, it is evident that the power to place an employee under

suspension is conferred on the appointing authority which is statutorily defined, under the 1988 Regulations, to mean the Managing Director.

Sri Amar Murti Shukla, learned counsel for the petitioner, would contend that it is only upto Class-II category employees that power is conferred on

the Managing Director to place them under suspension; and, since the petitioner falls under Class-I category, the power to place him under suspension

is conferred only on the Administrator, and not on the Managing Director.

Regulation 51(3) of the 1988 Regulations, as noted above, enables an employee to be placed under suspension by the appointing authority.

Regulation 2(i) of the 1988 Regulations defines an ‘employee’ to mean any person appointed, by the Federation, as a whole time employee of

the Federation or Factories or Distilleries and other commercial establishments of the Federation, including a person employed as the whole time

employee in a managerial or supervisory capacity, but excluding the following categories of employees (i) casual employees or persons employed on

contract basis; (ii) Government servants and other persons employed on deputation; (iii) Apprentices and Trainees during the period of apprenticeship

or training as the case may be; and (iv) persons retired on superannuation and re-employed. Admittedly, the petitioner does not fall within any of the

excluded categories in Regulation 2(i) and would, therefore, fall within the ambit of the said provision. Consequently, it is the appointing authority,

which is the Managing Director of the Federation, who has the power to place him under suspension.

Reliance is placed by Sri Amar Murti Shukla, learned counsel for the petitioner, on the office order dated 19.09.2013, to submit that all manner of

disciplinary action, which would include placing an officer under suspension, have been conferred on the Chairman / Administrator and not on the

Managing Director.

The office-order dated 19.09.2013 is not statutory in character, but is in the nature of administrative / executive instructions. The said office-order

was issued for easy disposal of the work relating to responsibilities of officers of the Uttarakhand Co-operative Sugars. The Chairman / Administrator

has been allocated the work, in Clause 9 thereof, of making entries and acceptance of confidential entries of centralized service officers above

category-2, and the disposal of all matters related to appointment, transfer, confirmation, disciplinary action, etc., for this category of establishment.

It is well settled that, where there are no statutory provisions or rules governing the field, administrative instructions can be issued which would

apply to those covered thereby. Administrative instructions cannot, however, supersede statutory regulations and can only supplement them. (B. N.

Nagarajan and Ors etc. Vs. State of Mysore and Ors etc. : AIR 1966 SC 1942 ; and Sant Ram Sharma Vs. State of Rajasthan and Ors : AIR 1967

SC 1910)

In the present case the 1988 Regulations, which are statutory in character, confer power on the Managing Director to place an employee under

suspension. It is not even the case of the petitioner that the 1988 Regulations have ceased to operate, or that the office-order dated 09.09.2013 is

statutory in character. Consequently, the office-order dated 09.09.2013 must be read harmoniously with the 1988 Regulations, and cannot be

understood as having laid down anything contrary thereto. If there is any conflict, then it is the 1988 Regulations which would prevail and not the

administrative instructions issued under the office-order dated 09.09.2013.

It is unnecessary for us to dwell on this aspect any further since the material placed before us, by Sri T.A. Khan, learned Senior Counsel

appearing for the respondent-Sugar Mill, would show that the Managing Director had, by his endorsement dated 27.05.2020, sought approval of the

Administrator to place the petitioner under suspension; and the Administrator had, by his endorsement dated 28.05.2020, accorded approval to place

the petitioner under suspension and had thereafter, by his endorsement dated 04.06.2020, accorded approval for appointment of an Inquiry Officer.

The plea with regards lack of jurisdiction of the second respondent to place the petitioner under suspension, therefore, necessitates rejection.

With regards the other contention that a charge sheet could not have been issued by the Inquiry Officer, it is necessary to note that Chapter VII of

the 1988 Regulations relates to penalties and disciplinary proceedings. Regulation 51(1) thereunder stipulates that disciplinary proceedings against an

employee shall be conducted by an Inquiry Officer, duly appointed by the appointing authority, with due observance of principles of natural justice, for

which it shall be necessary that (a) the employee shall be served with a charge sheet containing specific charges and mention of evidence in support

of such charge, and he shall be required to submit an explanation in respect of the charges within a reasonable time.

While Regulation 51(1) of the 1988 Regulations requires an Inquiry Officer to be appointed by the appointing authority, it does not expressly

stipulate who should issue a charge sheet. An inquiry officer is merely a delegate of the disciplinary authority (Union of India vs. H.C. Goel : 1964 SC

364). It is only if the Rules expressly provide that the person so designated shall alone issue a charge-sheet, would it be impermissible for any other to

do so. In any event we see no reason, at this stage, to interdict the inquiry proceedings initiated against the petitioner, as all these contentions, including

the contention that the Inquiry Officer lacks jurisdiction to issue a charge-sheet, can always be raised by the petitioner after conclusion of the

disciplinary inquiry which has been initiated to enquire into the grave and serious allegations levelled against him.

Sri Amar Murti Shukla, learned counsel for the petitioner, would seek a direction to the respondents to complete the inquiry at an early date. He

would contend, in our view rightly so, that prolonged suspension of an employee is impermissible.

When we asked Sri T.A. Khan, learned Senior Counsel, what would be a reasonable time-frame to complete the inquiry, he would submit that a

minimum of six months would be required to do so. We are satisfied that the matter needs to be expedited, and that the inquiry should be completed

much earlier. We, accordingly, direct the respondents to forthwith commence the inquiry proceedings, and complete the inquiry with utmost expedition

and, in any event, within four months from the date of production of a certified copy of this order.

Needless to state that the petitioner shall cooperate in the early completion of the inquiry and any delay, or attempt on his part to drag-on enquiry

proceedings, would absolve the inquiry officer of adhering to the time-frame stipulated in this order.

Subject to the aforesaid observations, we see no reason to interfere with the impugned order. The Writ Petition fails and is, accordingly, dismissed.