Shantilal Vastavat vs The State of Rajasthan and Others

B.S. Chauhan, J.—In the instant petition, petitioner has challenged the impugned orders dated 4.6.1980, 27.9.1980, 4.5.1983 and 22.4.1987 contained in Annexs. 1, 9 and 12A to the petition, by which the petitioner has been removed from service and his appeal, revision etc. have been dismissed. Before proceeding further, it may be pointed out here that petitioner has sought quashing the impugned order dt. 27.9.1980, which had not been filed by the petitioner and the same had been filed by the respondents alongwith their reply to the petition as Annex. R/9.

Petitioner was appointed as a clerk on 1.3.1972 with Rajasthan Mahila Parishad. There has been some break in service and he was again appointed on Jan. 24, 1978 as is evident from Annex. R/1 filed alongwith the reply to the petition. Petitioner proceeded on leave just after filing the application in anticipation of sanction of leave and remained absent from 1.3.1980 to 15.3.1980, 18.3.1980 to 30.3.1980, 1.4.1980 to 30.4.1980 and 1.5.1980 to 4.6.1980 as is evident from the notice dt. 4.6.1980 contained in Annex. 1 to the petition. The said notice/order dated 4.6.1980 was passed by the respondents which provided for removal of the petitioner from service with effect from 1.6.1980. However, the petitioner was asked to file a representation regarding his salary etc. for the period of absence with sufficient proof for reasons to remain absent. Petitioner filed an application/ representation dated 20.6.1980 contained in Annex. 2 to the petition that petitioner being a regular employee could not have been removed without following the procedure of law and asked the respondents to recall the order dt. 4.6.1980 immediately. The said reply was received by the respondent No. 3 on 23.6.1980 and after considering the same, respondent No. 3 issued the notice dt. 30.6.1980 contained in Annex. 3 to the petition to show cause why action should not be taken against petitioner as per the rules as he remained absent without leave for the period stipulated in the notice. Petitioner, instead of filing a reply to the said show cause dated 30.6.1980, filed an appeal on 30.6.1980 contained in Annex. 4 to the petition before respondent No. 2 against the order dt. 4.6.1980. Consequently, respondent No. 3 considered the case in absence of reply to show cause and passed impugned order dt. 27.9.1980 removing petitioner from service and the same was also communicated to the respondents No. 1 and 2. Appeal of the petitioner against order dated 4.6.1980 was rejected on 4.12.1980 vide order dt. 4.12.1980 contained in Annex. 5 to the petition only on the ground that the order dt. 4.6.1980 was merely a show cause notice and the petitioner had been finally removed from service vide order dt. 27.9.1980. As the petitioner did not prefer any appeal against the said order, the appeal against the order dt. 4.6.1980 was not maintainable. Petitioner received the order dt. 4.12.1980 and instead of filing an appeal before respondent No. 2 against the order dt. 27.9.1980, he preferred a further appeal to respondent No. 4 on 2.1.1980 contained in Annex. 8 to the petition and the same has been dismissed vide order dt. 4.5.1983 contained in Annex. 9 to the petition. Petitioner preferred further appeal before respondent No. 1 on 29.5.1983 contained in Annex. 10 to the petition and the said appeal was also dismissed by respondent No. 1 after hearing the petitioner vide order dt. 22.4.1987 contained in Annex. 12-A to the petition only on the ground that the actual effective order of punishment was passed on 27.9.1980 and no appeal had been preferred against the same. Being aggrieved and dissatisfied, petitioner has filed the instant petition challenging the aforesaid impugned orders.

Heard S/Shri R.S.Saluja learned Counsel for the petitioner and C.P.Trivedi and R.L.Jangid learned Counsel for the respondents.

S/Shri Trivedi and Jangid have raised preliminary objection regarding maintainability of the writ petition. Undisputedly, services of the petitioner were governed by the non-statutory rules known as the Rajasthan Rules for Payment of Grant in Aid to Non Govt. Educational and cultural Institutions, 1963, hereinafter called "the Rules 1963" Rule 4(a) of the Rules 1963 provides that the services of the employees shall be governed by the agreement executed with the Head of the Institution. Rule 4(e) provides that the services of the employees can be terminated after affording him reasonable opportunity to show cause. Sub Rule (g) of Rule 4 provides for first appeal against the order of Management Committee to the Director and secondly to the Govt. as per the requirement of Appendix-V to the said rules.

It has been canvassed on behalf of the respondents that the said rules are non statutory and the services of the petitioner were governed by the terms and conditions of the agreement. Petitioner did not file a copy of the agreement and the terms of agreement cannot be enforced through writ jurisdiction, therefore, this writ petition is not maintainable. Another objection regarding maintainability is that the respondent Mahila Parishad is a Society registered under the Cooperative Societies Act and the services of the petitioner being governed by the non statutory Rules 1963, the Society is not amenable to writ jurisdiction.

So far as the first objection is concerned, in Bareilly Development Authority v. Ajay Pal Singh AIR 1989 SC 1706 , a similar contention was raised, though regarding a contract/agreement with State. The Apex Court considered a catena of judgments particularly, Radhakrishna Agarwal and Others Vs. State of Bihar and Others, ; Premji Bhai Parmar and Others Vs. Delhi Development Authority and Others, ; Divisional Forest Officer Vs. Bishwanath Tea Co. Ltd., and arrived at the conclusion that where the contract entered into between the State and the persons agreed is non-statutory and purely contractual and the rights are governed only by the terms of the contract, writ petition under Article 226 of the Constitution of India is not maintainable. The Court observed as under:

...Where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple.

However in Indore Development Authority Vs. Sadhana Agarwal (Smt) and Others, , the Supreme Court affirmed and approved the view taken by the Apex Court in Bareilly Development Authority (supra), but it further provided that High Court. While exercising its extra ordinary jurisdiction under Article 226 of the Constitution, may satisfy itself on the materials on record that the State has not acted in arbitrary or erratic manner. In Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, the Hon''ble Apex Court has categorically held that where dispute arises from general law of contract, the appropriate forum may be a civil court and the appropriate remedy would be a civil suit.

In the instant case, petitioner has not filed the copy of the agreement, which he had entered with the respondent Society. Thus, it is not possible for the court even to examine the terms and conditions of his employment.

The second issue is also no more res integra. This issue has been considered from time to time by the courts i.e. Radha Charan Sharma v. U.P. Cooperative Federation and Ors. 1982 LB&E Cas 89; Ram Lakhan Pathak v. District Assistant Registrar, Cooperative Societies, Kanpur and other, 1996 (1) Educational and Science Cases 32; Workmen Kampli Cooperative Sugar Factory Limited v. The Management of Kampli Sugar Factory Limited and Ors. 1994 (69) F.L.R. 319 ; Co-operative Central Bank Ltd. and Others Vs. Additional Industrial Tribunal and Others, ; Sabhajit Tewary Vs. Union of India (UOI) and Others, ; Chander Mohan Khanna Vs. The National Council of Educational Research and Training and other[OVERRULED], ; Sri Konaseema Cooperative Central Bank Ltd. AIR 1990 A.P. 171 ; Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, ; Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, ; Aley Ahmad Abidi v. District Inspector of Schools, Allahabad and Ors. AIR 1977 All. 531 ; The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, ; Chakradhar Patel Vs. Samasingha Service Co-operative Society Ltd. and Others, ; Executive Committee of Vaish Degree College Shamli v. Laxmi Narain AIR 1976 SC 888; P. Bhaskaran and Ors. v. Additional Secretary, Agricultural (Cooperation) Department and Ors. AIR 1988 Ker. 74 ; Ramswarup Gupta Vs. Madhya Pradesh State Co-operative Marketing Federation Ltd. and Others, All the aforesaid authorities were considered by this court in S.B.Civil Writ Petition No. 2197/1989 Savarmal Pansari v. Churu Wholesale Upbhogta Sahkari Bhandar Ltd. and Anr. decided on 19.8.1997 and came to the conclusion that where a society does not owe its birth to a statute nor its existence depends upon a statute, it will not be amenable to writ jurisdiction. If it is merely a creation of the committee of management of the cooperative society, the mere requirement of registration or even aid from the Govt. would not make the Society amenable to writ jurisdiction. In the instant case, no sufficient material has been placed on record, on the basis of which this issue can be conclusively determined. Therefore, no specific finding can be recorded on this count. As Shri Saluja has fairly conceded that 1963 Rules are non-statutory, it is difficult to assume that this court can issue any writ to the respondent Society. Even if this court wants to decide the case on merits, the evidence/material placed on record falls short to determine any issue. Petitioner did not place the copy of the agreement of service on record. Order dated 4.6.1980 reveals that respondent Society had issued notice on 7.3.1980, the same is not brought on record. Nor the petitioner explained why he did not file any reply to the said show cause notice dated 7.3.1980, once he became aware of the fact that his services had been terminated vide order dt. 27.9.1980, as it was made clear to him vide order dt. 4.12.1980 contained in Annex. 5 to the petition. Petitioner always avoided acknowledging the said order as is evident from the contents of Annexs. R/5, R/10, R/12 and R/13 wherein the respondents have tried their best to serve the petitioner through registered post on the address given by him. He never intimated the respondents, if he had ever changed his residence. Moreover, there is sufficient proof that the said order and even the notice prior to passing the order dt. 27.9.1980 were served upon the petitioner by the respondents by affixing the notice on the house of the petitioner, which was done in presence of two independent witnesses and the impugned order dt. 27.9.1980 was also affixed on his house. Shri Saluja has vehemently urged that this was not the service as per the provisions of the Code of Civil Procedure, 1908. There is no substance in the submission as the provisions of C.P.C. are not applicable in disciplinary proceedings. The contents of the notice dt. 18.8.1980 contained in Annex. R/4 to the reply to the petition were to the effect that the petitioner was given a chance to file a reply to show cause within a period of fifteen days. Petitioner did not avail this opportunity and did not file reply. Whether the service effected or not is a disputed question of fact and cannot be determined in writ proceeding.

Shri Saluja has next urged that once the petitioner had been removed from service vide order dt. 4.6.1980, the respondents became functus officio and there was no occasion for respondent No. 3 to pass the order dt. 27.9.1980. This argument has no force as the services were not governed by any statutory Rules, rather the same was subject to the terms and conditions provided in the agreement of service. Petitioner himself has made an application on 20.6.1980 contained in Annex. 2 to the petition to recall the said order. Moreover, the petitioner failed to point-out by what means, he has been prejudiced if a second fair chance of defence had been accorded to him on his own application dt. 20.6.1980. A person cannot be allowed to blow hot and cold in the same breath as it would be in contravention of the principle of election. In R.N. Gosain Vs. Yashpal Dhir, the Hon''ble Supreme Court has observed as under:

Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept, and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage.

Thus, it is settled law that after taking advantage under an order, a party may be precluded from saying that it is invalid and asking to set it aside. In the instant case, petitioner had been given a concession to reply to show cause afresh. It may be mentioned here that even prior to passing of an order dated 4.6.1980, the notice dt. 7.3.1980 was served upon petitioner and petitioner did not file any reply to the same. Petitioner is not permitted to agitate this issue. Petitioner had been aware of the fact that again an order had been passed on 27.9.1980, the court fails to understand why he could not file appeal against the same. Further in view of the fact that contractual obligation cannot be enforced through writ jurisdiction and as it could not be decided whether the respondent Society is amenable to writ jurisdiction or not, the instant petition does not warrant the exercise of extra ordinary discretionary jurisdiction under Article 226 of the Constitution of India. Therefore, the petition is dismissed.