Himachal Pradesh High Court
Jallan Cooperative Agriculture ... vs State Of H.P. & Others R on 12 March, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 4101 of 2013.
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Reserved on : 28.02.2018.
Decided on: 12th March, 2018.
Jallan Cooperative Agriculture Service Society Ltd.
....Petitioner.
Versus State of H.P. & others r ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners: Mr. Ajay Sharma, Advocate.
For Respondent No.1 to 4:: Ms. Rita Goswami, Addl.
Advocate General with Mr. Y. S.
Thakur, Deputy Advocate
General.
For Respondent No.5: Mr. Naresh Kumar Sharma,
Advocate.
Sureshwar Thakur, Judge.
An inquiry conducted by the Assistant Registrar Cooperative Societies, Hamirpur, vis-a-vis various 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/03/2018 23:00:22 :::HCHP
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charges of misconduct imputed qua the delinquent/respondent No.5, sequelled adversarial findings against him. The adversarial findings, recorded by the Inquiry Officer, in his report of 16.04.2012, appertain to his embezzling the funds of the society besides his interpolating the records of the society. On receiving the inquiry report, the Managing Committee of the petitioner society, rendered, on 15.03.2003, an order, for the dismissal of the services, of respondent No.5. Preceding, the rendition of the aforesaid order, by the Managing Committee, of the petitioner society, a show cause notice was served upon respondent No.5, copy whereof is appended, as Annexure P-2, with the extant petition, wherafter, as borne on a perusal of Annexure P-3, respondent No.5 meted reply thereto, wherein, he urged, of, no penalty being imposable upon him. However, in Annexure P-3, he did not unveil, the trite grounds, whereupon, he concerted to assail the ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...3...
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findings recorded by the Inquiry Officer, rather he proceeded to, in paragraph No.2, of Annexure P-3, merely make a communication, of, the inquiry report prepared on 12.04.2012, not recording findings, of inculpation vis-a-vis any serious mis-conduct, hence, the extant inquiry report being misconceived.
delinquent/respondent No.5, being aggrieved, by the r The order rendered by the Managing Committee, of the petitioner-society, hence, preferred an appeal therefrom, before the Additional Registrar (Administration) Cooperative Societies, H.P.. Appeal whereof, came to be registered as appeal No.263 of 2013, (i) thereon, the Appellate Authority, ordered, for the reinstatement in service of respondent No.5 herein and also proceeded to quash resolution No.4 of 22.2.2013, (ii) besides reserved liberty, to the Managing Committee, to impose upon respondent No.5, any penalty, excepting penalty(ies) of his dismissal or termination from service. The society ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...4...
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concerned is aggrieved therefrom, hence, has preferred the instant petition before this Court.
2. The reasons which prevailed upon the Appellate Authority, for, rendering the impugned order, are harboured upon (a) the order imposing penalty, upon, the delinquent/respondent No.5, lacking in legal sanctity, given its being rendered without preceding thereto, any opportunity of being heard standing afforded to the delinquent. However, the aforesaid reason is per se flimsy, especially when preceding the order of dismissal from service, being, pronounced upon the delinquent/respondent No.5, by the Managing Committee of the Society concerned, (b) it was, as aforestated, rather preceded by a show cause notice, borne in Annexure P-2, being served upon him, (c) notice whereof was replied under Annexure P-3 by respondent No.5.
Since, the show cause notice issued vis-a-vis respondent No.5, stood appended, with, copy of resolution No.4 of ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...5...
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11.06.2012 and with a copy, of, inquiry report, (d) besides obviously when thereunder intimation was made vis-a-vis delinquent/respondent No.5, to show cause against the imposition vis-a-vis him, of, penalty of dismissal from service, given the incriminatory findings the apposite r to being recorded against him by the Inquiry Officer vis-a-vis charges of grave misconduct.
Consequently, issuance besides evident service of show cause notice, borne in Annexure P-2, upon the delinquent official, (e) does mete, the necessary compliance, with the principles of natural justice nor obviously it was open for the Appellate Authority, to conclude that for purported want, of the delinquent official concerned, being heard by the disciplinary authority concerned, (f) nor any show cause notice being served upon him, the resolution rendered by the society concerned, whereby, his services were ordered to be dismissed, hence, wanted in legal sanctity.
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3. Added vigour to the aforesaid conclusion, is garnered by the factum, of, the delinquent official concerned, meteing his reply tot he show cause notice, wherein, he omitted to spell out the reasons or his grounds, of, disconcurrence with the adversarial findings recorded vis-a-vis him, by the Inquiry Officer concerned.
The omission(s) aforesaid rather are grave and contrarily, render open an inference, of the delinquent official concerned, waiving his right, AND also, of, his rather in an inappropriate manner canvassing, his agitations vis-a-
vis the adversarial findings recorded vis-a-vis him, by the Inquiry Officer. Further effect thereof, is that the Appellate Authority, has wandered astray, in concluding, of, no compliance vis-a-vis principles of natural justice standing meted, by the Society concerned, (ii) conspicuously with there occurring no specific mandate, in the apposite statute or the Rules framed thereunder, whereupon the Managing Committee of the Society ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...7...
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concerned, stood enjoined, to, preceding its imposing penalty, hence afford a personal hearing to the delinquent official concerned. Even otherwise, the aforesaid succinct reply furnished, by the delinquent official concerned vis-a-vis the show cause notice served upon him, does negate, any espousal of respondent No.5,
(iii) of the adversarial findings recorded vis-a-vis him by the Inquiry Officer concerned, being not anvilled upon any evidence or theirs arising from the inquiry officer concerned mis-appreciating, the relevant evidence besides his omitting to appreciate the relevant evidence, germane to the articles of charge, (iv) also, the Appellate Authority, without, delving into the crucial factum, of any misdemeanour standing purportedly, conducted, by the Inquiry Officer concerned, arising, from his misappreciating evidence or his not appreciating the relevant evidence germane to the articles of charge, was, rather precluded, to merely on purported non ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...8...
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compliance, by the disciplinary authority, with the principles of natural justice, (v) hence, render any conclusion, that the penalty of dismissal from service, imposed, upon the delinquent in pursuance to adversarial findings recorded against him by the Inquiry Officer, rather merited interference. Moreover, the reasons ascribed, by the Appellate Authority, for, interfering with the order imposing penalty of dismissal, from, service upon the delinquent official, by the competent disciplinary authority, is anvilled upon a charge, bearing similarity with the articles of charge(s), whereon, adversarial findings were recorded by the Inquiry Officer, rather hence pending adjudication before the Additional Sessions Judge, Hamirpur, (vi) thereupon, no reliance being amenable to be placed upon the report furnished, by the Inquiry officer concerned. However, the aforesaid reason is per se specious, especially when no evidence has been placed on record, demonstrative, of, any Court ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...9...
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of competent jurisdiction, restraining the Inquiry Officer concerned, from, holding a domestic inquiry against the delinquent official concerned, even when the hereat articles of charge(s), purportedly bore, similarity vis-a-vis charges, framed against the delinquent official, by the competent court of criminal jurisdiction. Consequently, it was not open, for the inquiry officer, to await for rendition of a verdict, by the competent court of criminal jurisdiction, upon, charges vis-a-vis the one(s) in respect whereof, adversarial findings stood recorded by the Inquiry Officer against the delinquent official, adversarial findings whereof stood validly accepted, by the disciplinary authority concerned nor hence the Inquiry report acquires any stain of any want, of, jurisdictional competence vis-a-vis its author.
4. The Appellate Authority has also committed a grave error, in, after its interfering, with the order imposing penalty of dismissal, from service upon the ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...10...
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delinquent official, by the disciplinary authority concerned, its making a direction, upon it, to except imposing a penalty of dismissal from service or termination from service upon him, impose any other penalty. The aforesaid order is in dire contradiction, with earlier therewith aforesaid reasons, (i) wherein rather the Appellate Authority, proceeded to untenably interfere with the adversarial findings recorded by the Inquiry Officer vis-a-vis the delinquent official/respondent No.5.
Be that as it may, given the severity of the proven misconduct against the delinquent official/respondent No.5 AND the necessity of existence of perennial, of, trust in him by the society concerned, being a sine qua non, for securing the continuity in service of the delinquent official/respondent No.5, (ii) thereupon, the magnitude of the proven misconduct against the delinquent official, has naturally eroded the trust and confidence, of, the society concerned, in the delinquent ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...11...
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official, whereupon, it was grossly improper for the Appellate Authority, to order for retaining, the delinquent official concerned, in service.
5. The learned counsel appearing for respondent No.5, has contended with much vigour, before, this Court that given the mandate, of, the apt portion hereinafter extracted sub-rule (3) of Rule 43, of the rules r of the framed under the Himachal Pradesh Cooperative Societies Act, 1968:-
"Unless other wise provided in the bye-laws, or in the terms of his appointment and subject to the provisions of Section 72 of the Act, any officer of the Society appointed by the managing committee may be removed from his office by the managing committee, subject to approval of the Registrar."
(i) it was imperative, for, the managing committee concerned to receive the concurrence, of, the Registrar concerned, before it proceeded, to impose penalty of ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...12...
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dismissal upon him, (ii) whereas, the Registrar concerned, not, meteing his concurrence vis-a-vis the proposal of the society concerned, for dismissing respondent No.5, from service, (iii) thereupon, the mandate of sub-rule 3 of Rule 43, of the Rules framed under the Act aforesaid, is infringed, (iv) whereupon, the order of dismissal from service of the delinquent official hence warrants interference. However, in making the aforesaid submission, the learned counsel appearing for respondent No.5, has remained unmindful to the factum, of, sub-rule (3) providing, for, the general body of the society concerned, being the solitary repository, of, jurisdiction, for ordering for removal, from service of the delinquent official concerned, upon the apposite charges standing proved, (v) yet the proposal for removal, from service, to acquire validity, is enjoined, prior to its making, hence meted concurrence by the Registrar of the Cooperative Societies concerned. (vi) However, the ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...13...
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peremptoriness, of, compliance with the aforesaid statutory requirement, arises, only when the apt proposal, is vis-a-vis removal from service, of, the errant official concerned, (vii) whereas, with the society concerned, extantly, ordering for dismissal, from service of the errant official concerned, (viii) obviously, hence, when the parlance, borne by the phrase "dismissal from service" is contradistinct, from, the parlance borne by the phrase "removal from service", (ix) and with the phrase "dismissal from service", not, occurring in the apt sub-
rule (3) of Rule 43 of the rules, framed, under the Act, (x) thereupon, no peremptory compliance is enjoined to meted thereto, nor it was incumbent upon the disciplinary authority, to, prior to is ordering, for dismissal from service, of the errant official, to hence seek the concurrence of the Registrar of the Cooperative Societies.
Significantly, the omission aforesaid in the apt rules, is to safeguard against interference(s) by the apt statutory ::: Downloaded on - 15/03/2018 23:00:22 :::HCHP ...14...
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authority(ies) with renditions, of, the aforesaid order, especially when its per se taking force, is imperative for ensuring elimination of errant official(s) vis-a-vis whom grave charge(s) of moral turpitude, stand, evidently proven, hence rendering him to lose the trust of the Society.
6. to For the foregoing reasons, the instant petition is allowed and the order rendered by the Additional Registrar (Administration) Co-operative Societies, H.P. at Shimla in Appeal No.264/13 on 24.7.2013 is set aside. All pending applications also stand disposed of.
(Sureshwar Thakur), Judge.
12th March, 2018.
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