Virendra Kumar Gupta vs State of Uttar Pradesh and Others

Akhtar Husain Khan, J—Present petition has been filed by petitioner, Virendra Kumar Gupta, under Article 226 of the Constitution of India with following prayers:

(I) Issue a writ, order or direction in the nature of certiorari setting aside the impugned order dated 4.2.2009 passed by the Managing Director, U.P. Co-operative Federation Limited ("PCF") contained in Annexure 1 to the petition alongwith orders/actions incidental and consequential thereto.

(II) Issue a writ, order or direction in the nature of certiorari setting aside the impugned letter dated 12.1.2009 claimed to have been issued by the Secretary, U.P. Co-operative Institutional Service Board ("Board") communicating to the PCF the concurrence of the Board for petitioner''s dismissal from service and also set aside the order or decision of the Board giving the said concurrence, if any, after summoning the record from the PCF and the Board or otherwise.

(III) Issue a writ, order or direction in the nature of mandamus commanding the PCF, its authorities, officers and all concerned to allow the petitioner to continue with his service with the PCF and perform his duties, alongwith all incidental and consequential benefits of continuous service including full back wages, free from any adverse effect of impugned order dated 4.2.2009 (supra) or the related actions, departmental or otherwise, declaring the said actions to be a nullity and void ab initio.

(IV) Award cost in favour of the petitioner.

Parties have exchanged affidavits.

We have heard learned counsel for petitioner as well as learned Standing Counsel and learned counsel for opposite parties No. 2 and 3

Learned counsel for petitioner contended that vide impugned order dated 4.2.2009 annexure-1 to the petition passed by Managing Director, U.P. Co-operative Federation Limited; opposite party No. 2, petitioner has been awarded penalty of dismissal from service alongwith penalty of recovery of Rs. 17,52,464.58/-, the amount of pecuniary loss alleged to have been caused by petitioner.

Learned counsel for petitioner contended that U.P. Co-operative Societies Employees'' Service Regulations, 1975 is applicable on opposite party No. 2 and regulation 84 of said Regulations provides that only one of penalties prescribed in it may be awarded to the employee, who has committed breach of duty enjoined upon him or has been convicted for criminal offence or an offence under Section 103 of the Act or does anything prohibited by said Regulation. Therefore, two penalties awarded by opposite party No. 2, is contrary to provisions of said Regulation 84.

Learned counsel for petitioner further contended that the impugned order dated 4.2.2009 has been passed in violation of provisions of regulation 85 of said Regulations as well as principle of natural justice without proper opportunity of hearing and enquiry.

Learned counsel for petitioner contended that neither the petitioner was furnished relevant documents during enquiry nor he was permitted to produce witnesses in his defence.

Learned counsel for petitioner further contended that penalty awarded to petitioner is too harsh and excessive.

Learned counsel for petitioner has placed reliance upon following pronouncements:

(1) U.P. State Cooperative Land Development Bank Ltd. Vs. Chandra Bhan Dubey and Others, AIR 1999 SC 753 : (1999) 1 CTC 467 : (1998) 9 JT 81 : (1999) 1 LLJ 633 : (1998) 6 SCALE 670 : (1999) 1 SCC 741 : (1999) SCC(L&S) 389 : (1998) 3 SCR 659 Supp : (1999) 1 STC 593 : (1999) AIRSCW 364 : (1998) 9 Supreme 535 .

(2) Supriya Basu and Others Vs. West Bengal Hsg. Board and Others, AIR 2005 SC 4187 : (2005) 5 CTC 299 : (2005) 6 JT 618 : (2005) 6 SCC 289 : (2005) 3 SCR 351 Supp : (2005) 2 UJ 1128 : (2005) AIRSCW 3370 : (2005) 5 Supreme 371 .

(3) Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and Others, (2002) 4 JT 146 : (2002) 3 SCALE 638 : (2002) 5 SCC 111 : (2002) 3 SCR 100 .

(4) Gurcharan Singh Vs. Registrar, Co-operative Societies, Himachal Pradesh and Others, (2005) 8 JT 423 : (2005) 7 SCC 565 : (2005) 3 SCR 230 Supp .

(5) Binny Ltd. and Another Vs. V. Sadasivan and Others, AIR 2005 SC 3202 : (2005) 5 CTC 117 : (2005) 7 JT 214 : (2005) 3 LLJ 738 : (2005) 6 SCC 657 : (2005) SCC(L&S) 881 : (2005) 2 SCR 421 Supp : (2005) 3 SLJ 485 .

(6) The Printers (Mysore) Ltd. Vs. M.A. Rasheed and Others, (2004) 4 JT 158 : (2004) 4 SCALE 192 : (2004) 4 SCC 460 : (2004) 3 SCR 799 : (2004) 2 UJ 1300 : (2004) AIRSCW 7270 .

(7) Writ Petition No. 297 (SB) of 2000 S.R. Tyagi v. Principal Secretary to Government of U.P. and others.

(8) Radha Charan Sharma Vs. U.P. Cooperative Federation and Others, (1982) AWC 64 .

(9) Navjiwan Kisan Intermediate College Mawana, District Meerut and another v. Narendra Mohan Gupta, 1982 UPLBEC 95.

Learned Standing Counsel as well as learned counsel for opposite parties No. 2 and 3 contended that impugned order has been passed in accordance with law after due enquiry. Strictly in accordance with provisions of U.P. Co-operative Societies Employees'' Service Regulations, 1975 as well as The U.P. Co-operative Federation Ltd. Employee Service Rules, 1980.

Learned Standing Counsel as well as learned counsel for opposite parties No. 2 and 3 contended that charge-sheet containing nine charges were served on petitioner whereupon petitioner filed reply. Thereafter, enquiry was concluded by enquiry officer in accordance with said regulations and rules after proper opportunity of hearing to petitioner.

Learned counsel for opposite parties No. 2 and 3 as well as learned Standing Counsel further contended that Enquiry Officer has recorded findings in his enquiry report that charges Nos. 1, 2, 4 and 8 levelled against petitioner are proved; whereupon show-cause notice dated 17.10.2006 was served on petitioner. Petitioner filed his reply. He was heard in person also. Thereafter considering all facts and evidence as well as contention of petitioner, impugned penalty order has been passed by opposite party No. 2 after having received prior concurrence of board required by regulation 87 of said regulations of 1975.

Learned counsel for opposite parties No. 2 and 3 as well as learned Standing Counsel contended that two penalties have been awarded to petitioner keeping in view Rule 83 of the U.P. Co-operative Federation Ltd. Employee Service Rules, 1980.

We have considered submissions made by learned counsel for the parties.

Learned counsel for petitioner has referred above Judicial pronouncements mentioned at serial number 1 to 5 to show maintainability of this writ petition.

Learned Standing Counsel as well as learned counsel for opposite parties No. 2 and 3 have not disputed maintainability of this writ petition. Therefore, we need not to go further on this issue.

After having gone through affidavits of parties as well as records of case, it is apparent that enquiry has been conducted and concluded in accordance with provisions of Regulations of 1975 and sufficient hearing has been given to petitioner. Findings recorded by enquiry officer as well as by disciplinary authority are based on evidence. We are of the view that it is not proper to disturb findings recorded by enquiry officer as well as by disciplinary authority.

Now we shall see as to whether imposition of two penalties on petitioner is contrary to law.

Section 122 of the U.P. Co-operative Societies Act, 1965 appears relevant to quote below:

"122. Authority to control employees of co-operative societies: (1) The State Government may constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of co-operative societies, or a class of co-operative societies, and may require such authority or authorities to frame Regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employees and, subject to the provisions contained in Section 70, settlement of disputes between an employee of a co-operative society and the society.

(2) The Regulations framed under sub-section (1) shall be subject to the approval of the State Government and shall, after such approval, be published in the Gazette, and take effect from the date of such publication and shall supersede any Regulations made under Section 121."

It is an admitted fact that the State Government has constituted the Uttar Pradesh Co-operative Institutional Service Board (the Service Board) and with the approval of the Governor of State of Uttar Pradesh this Service Board has promulgated Regulations called the U.P. Co-operative Societies Employees'' Service Regulations, 1975 which were published in the U.P. Gazette dated 6.1.1976. The said regulations are applicable with effect from the date of their publication in the U.P. Gazette.

In the case of U.P. State Co-operative Land Development Bank Limited v. Chandra Bhan Dubey and others (Supra), after having considered provisions of Section 122 of U.P. Co-operative Societies Act, 1965 as well as U.P. Co-operative Societies Employees'' Service Regulations, 1975 framed under Section 122 of U.P. Co-operative Societies Act, 1965, Hon''ble Apex Court has held that under Regulation 102, a Co-operative society is empowered to frame service rules for its employees which, however, are to be subject to the provisions of the said Regulations.

Regulation 102 of U.P. Co-operative Societies Employees'' Service Regulations, 1975 reads as follows:

"102. (1) Subject to the provisions of these regulations, a co-operative society shall within three months from the date of coming into force of these regulations (unless an extension of time is allowed by the Board in writing frame service rules for its employees.

(ii) The service rules framed under sub-section (i) shall be submitted to the Board for approval and shall be operative only after the approval.

(iii) Notwithstanding anything contained in these Regulations the existing employees shall have an option to continue to be governed by the existing service rules, if any, in the society only in respect of their emoluments and benefits or to opt the new service rules on these matters.

Explanations: (1) Provisions relating to pay, increments and allowances (other than travelling allowance), provident fund and gratuity shall be deemed as included in the term "emoluments and benefits".

(2) In case of any doubt or dispute in interpretation in respect of the matter mentioned in (1) above, reference shall be made to the Board whose decision shall be final.

(3) Existing service rules means authentic service rules framed by and with the approval of the competent authority."

In view of above pronouncement of Hon''ble Apex Court rendered in the Case of U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and others (supra) as well as above Regulation 102, it is apparent that U.P. Co-operative Federation Ltd. Employees'' Service Rules, 1980 have been framed in pursuance of Regulation 102 of said Regulations of 1975 and are subject to said Regulations. Therefore, in case of conflict between said Regulations of 1975 and said Service Rules of 1980 Regulations of 1975 shall prevail.

Regulation 84 of Chapter VII of Regulation 1975 deals with penalties. Regulation 84 is reproduced below:

"Penalties.--(i) Without prejudice to the provisions contained in any other regulation, an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under Section 103 of the Act or does anything prohibited by these regulations shall be liable to be punished by any one of the following penalties:

(a) censure.

(b) withholding of increment.

(c) fine on an employee of Category IV (peon, chaukidar etc.),

(d) recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the Co-operative Society by the employee''s conduct,

(e) reduction in rank or grade held substantively by the employee,

(f) removal from service, or

(g) dismissal from service."

Rule 83 of Chapter VII of U.P. Co-operative Federation Ltd. Karmchari Seva Niyamawali. 1980 also deals with penalties. Said Rule 83 is reproduced below:

No doubt Rule 83 of Service Rules, 1980 provides imposition of one or more penalties but Regulation 84 of Regulations of 1975 permits imposition of only one penalty and in view of conclusion drawn above it is apparent that Regulations of 1975 shall prevail over service Rules, 1980.

In view of above we are of considered opinion that imposition of two penalties on petitioner is contrary to law. We are of the view that opposite party No. 2 should be given option to decide as to which of the penalties he wants to maintain. Case is remanded back to opposite party No. 2 to pass order accordingly after giving opportunity of hearing to petitioner. Writ petition is disposed of with above direction.