Andhra HC (Pre-Telangana)
Pinapatruni Nagabhushanam vs Government Of A.P. And Ors. on 25 September, 2002
Equivalent citations: 2002(6)ALD286, 2002(6)ALT693
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER Goda Raghuram, J.
1. Heard Mr. A. Satya Prasad, learned Counsel for the petitioner, learned Government Pleader for Co-operation for respondent Nos. 1 to 3; Mr. B. Udaya Bhasker, learned Counsel for respondent 5.
2. The petitioner, Secretary of the Payakaraopeta Primary Agricultural Cooperative Society, Payakaraopeta, Visakhapatnam district-4th respondent, assails the proceedings dated 13-5-2002 of the 4th respondent.
3. The petitioner was initially appointed as a Clerk in the 4th respondent-society with effect from 12-8-1986. The 5th respondent was also working as Clerk along with the petitioner in the 4th respondent-society from 1986, but was appointed as Secretary of the 4th respondent-society in the year 1987. There was an enquiry under Section 51 of the Andhra Pradesh Co-operative Societies Act, 1964 (for short 'the Act') in the year 1983 into the affairs of the 4th respondent-society. A report of the said enquiry was submitted by the co-operative Sub-Registrar, which found the 5th respondent guilty of misappropriation of the funds of the 4th respondent-society. On receipt of the said enquiry report, the management of the 4th respondent-society by orders dated 10-12-1993 removed the 5th respondent from his service as Secretary with effect from the date of the said order.
4. The 5th respondent challenged the order dated 10-12-1993 removing him from services, by way of WP No. 8547 of 1994. By the judgment dated 3-10-1994. WP No. 8547 of 1994 was allowed. This Court found that the order of termination dated 10-12-1993 was vitiated by violation of principles of natural justice, as the 5th respondent was denied the copy of the enquiry report before passing the order of removal. While allowing the writ petition, this Court permitted the 4th respondent-society to re-consider the issue after providing adequate opportunity to the 5th respondent and after supplying the necessary records, on which, the proposed action is to be based. This Court observed that in view of the quashing of the order of the removal, the 5th respondent would be entitled reinstatement with back wages. The 4th respondent-society filed an application in WP MP No. 23557 of 1994 after the disposal of the writ petition seeking review of the order dated 3-10-1994 of this Court. This Court by the order dated 7-11-1994 reviewed the earlier order and modified it to the extent that on reinstatement, the 5th respondent would continue at the stage at which the matter stood before the order dated 10-12-1993 was passed viz., he would be reinstated into service, would be continued under suspension and would be entitled to subsistence allowance alone instead of back wages, as directed in the original judgment. It needs to be mentioned that prior to the instituting of the writ petition, the 5th respondent had preferred an appeal to the District Collector against the orders of his removal and the District Collector by the order dated 19-4-1994 confirmed the order of the removal of the 5th respondent. This Court invalidated both the primary order of the 5th respondent's removal as well as the order of the District Collector confirming the order of the removal.
5. The 4th respondent-society by its order dated 4-1-1995 removed the 5th respondent from service, in the light of the findings in the report of the enquiry conducted under Section 51 of the Act, where the 5th respondent was found guilty of misappropriation of funds of the society to a tune of nearly Rs. 52,598-25. The 5th respondent did not challenged this order of removal. The term of the elected management committee which passed the order dated 4-1-1995 came to an end and an official - the Co-operative Sub-Registrar was appointed as Person-in-charge of the 4th respondent-society.
6. The official Person-in-charge passed an order dated 22-7-1995 superseding the order of the elected management dated 4-1-1995 removing the 5th respondent from service. The order dated 22-7-1995 also directed reinstatement of the 5th respondent into" service and continued him under suspension.
7. The petitioner asserts that on 22-7-1995, the date on which, the person-in-charge passed the order recalling the order of the elected management dated 4-1-1995 and re-instating the 5th respondent into service, a notification for conduct of elections had been issued by the election authority. Nevertheless, the then Person-in-charge had, in posthaste, passed the order dated 22-7-1995. After assuming office on 26-7-1995, the newly elected management committee of the 4th respondent-society appears to have sought legal opinion regarding the order of the official Person-in-charge, dated 22-7-1995 and had thereafter passed a resolution dated 6-9-1995, declaring the order of the Person-in-charge dated 22-7-1995 to be improper and contrary to the interests of the 4th respondent-society and cancelling the same. This resolution of the 4th respondent-society dated 6-9-1995 re-confirmed its earlier resolution dated 4-1-1995 removing the 5th respondent from the service of the society.
8. Against the order dated 6-9-1995, the 5th respondent preferred an appeal to the District Collector under the Special Byelaws of the 4th respondent-society. The District Collector, appellate authority, in exercise of the powers available under Bye-law 12 (3)(a) of the Special Bye-laws and in an elaborate and well considered order, concluded that the documentary and other circumstantial evidence proved beyond shadow of doubt that the 5th respondent was responsible for misappropriation of funds of the society and for criminal breach of trust, that the 5th respondent is guilty of grave misconduct and that in the circumstances, the order of the 4th respondent society dated 6-9-1995 removing the 5th respondent from service is legal and valid. On the above conclusion, the appeal preferred by the 5th respondent was dismissed by the order dated 31-5-2002 of the District Collector. This order of the appellate authority confirming the order of the society dated 6-9-1995 was not challenged by the 5th respondent and has become final.
9. Indefatigably, the 5th respondent appears to have submitted a representation on 10-5-2002 to the 4th respondent-society, which, after the completion of the term of the elected management committee, was again being managed by an Official Person-in-charge committee. The representation of the 5th respondent was favourably considered by the Person-in-charge committee, which passed the order dated 13-5-2002. It needs to be noticed that before considering the representation of the 5th respondent dated 10-5-2002 or passing the order dated 13-5-2002, the Person-in-charge committee did not consider the order of the appellate authority, the District Collector, dated 31-5-2002, which set out in elaborate detail the chronicle of the series of the charges against the 5th respondent and the evidence available on record in substantiation of the charges. It did not also consider the conclusion of the District Collector, the appellate authority, that the 5th respondent was guilty of gross misconduct and misappropriation of the funds of the society and that there was no infirmity in the order of the society dated 6-9-1995.
10. The order of impugned, dated 13-5-2002, directed reinstatement of the 5th respondent into service. In justification of this order, the Person-in-charge Committee of the 4th respondent recorded that for the discharge of daily financial and other transaction of the society in a responsible manner, the services of a responsible Secretary are essential and that is the reason why, the 5th respondent was being reinstated into service. It would appear from this reason recorded, that the Official Person-in-charge committee of the 4th respondent was satisfied that the 5th respondent was eminently suited and qualified to discharge the functions of a Secretary in the 4th respondent-society and that his continuance is in the interests of the 4th respondent-society, notwithstanding the order of the appellate authority, District Collector, dated 31-5-2002. As a consequence of the reinstatement of the 5th respondent as Secretary, the petitioner was reverted back as Clerk and treated as such, by the impugned order of the Official Person-in-charge Committee of the 4th respondent.
11. It is required to be stated that consequent on the removal of the 5th respondent from service by the order of the 4th respondent-society dated 4-1-1995 and in the eventual vacancy, the petitioner was appointed as Secretary by the 4th respondent-society on 1-7-1995 and has been working as such since then. As the impugned order of the Person-in-charge committee of the 4th respondent adversely affects the petitioner's continuance in the post of Secretary, the petitioner has approached this Court assailing the Said order.
12. Section 116(AA) of the Act abolished Centralized services for certain categories of employees and obligates the Registrar of the Co-operative Societies to allot such decaderised employees to such primary agricultural credit societies, as he may consider fit. Consequent on the decaderisation of employees, Rule 72 (3) of A.P. Co-operative Societies Rules, 1964 (for short 'the Rules') set out guidelines for decaderisation of the posts of Secretaries, their allotment to a society and for other incidental areas of regulation of the services of such decaderised Secretaries. Sub-rule (3) of Rule 72 of the Rules specifies that "the Secretary, on allotment to a Society, shall be deemed to be the employee of that society and shall be entitled to receive pay and allowances as may be fixed from the funds of the said society; and that the service conditions of the Secretaries working in the societies shall be governed by such service regulations as may be framed by the Registrar for adoption by the Societies." Sub-rule (4) of Rule 72 of the Rules ordains that subject to the disciplinary procedure laid down in the Service Regulations, as may be issued by the Registrar of Cooperative Societies and to be adopted by the Societies, the Society shall exercise disciplinary control over the Secretary. There are other incidental and house keeping provisions for regulating other conditions of service of the Secretaries with which, however, we are not concerned in this lis.
13. In the light of the above extent and degree of control exercise by the Registrar of Co-operative Societies including in respect of the framing of binding byelaws or service conditions regulating the services of Secretaries working in the Primary Agricultural Co-operative Credit Societies, it would be reasonable to infer that the service byelaws of a co-operative society insofar as they deal with the service conditions of a Secretary, have a statutory origin under Rule 72 of the Rules and having been framed by the Registrar have also a statutory flavour and statutory underpinnings. On this inference, declining adjudicating of service grievance of a Paid Secretary, on the ground that a Primary Agricultural Cooperative Credit Society may not be an agency or instrumentality of the State or other authority within the meaning of Article 12 of the Constitution of India, may not be proper. 1 am, therefore, inclined to adjudicate upon this lis and reject the challenges by the 4th and 5th respondents to the maintainability of the writ petition on this account.
14. The Special Bye-laws of the Society have been framed by the Registrar in purported exercise of powers under Rule 72(3) of the Rules. Byelaw 12(3)(a) of the Society constitutes the District Collector as the appellate authority, against any order of dismissal or removal of a Paid Secretary of the Society passed by the Managing Committee of the Society. Since the Special Byelaws are seen to have a statutory flavour, the exercise of the inherited power must necessarily be construed as an exercise of power having a quasi-judicial flavour. Once the 5th respondent has exercised the option of pursuing the appellate remedy to the District Collector against the order dated 6-9-1995 of the 4th respondent-society and on such appeal, the District Collector having, by order dated 31-5-2000 dismissed the appeal confirming the order of the 4th respondent-society dated 6-9-1995 on applicable principles of administrative law, the 4th respondent-society is disabled from exercising any disciplinary power. In any case, exercise of disciplinary jurisdiction is an exerbise of quasi-judicial power and absent specific power of review, the 4th respondent is denuded the power or authority to review its orders dated 6-9-1995. More so, when those orders are merged in the appellate order dated 31-5-2000. It also requires to be noticed that the reason recorded by the 4th respondent in its order dated 31-5-2000 reinstating the 5th respondent into service viz., that a responsible person is required to function as a Paid Secretary for discharging the day to day financial and other functions of the society, is a perverse conclusion having regard to elaborate, chronicle of the 5th respondent's delinquence recorded by the District Collector in his order dated 31-5-2000. The 4th respondent-society appears to have been, overawed by the persuasive representation of the 5th respondent and in such state of awe, has totally disregarded even the interests of the 4th respondent-society. The only responsibility apparent in the 5th respondent, going by the order of the District Collector dated 31-5-2000, is responsibility for misappropriation. If these characteristics of the 5th respondent were found essential for the 4th respondent-society, by the Person-in-charge Committee of the 4th respondent, then the matter is grave enough to warrant a consideration by the Registrar of Co-operative Societies as to whether it is in the interests of the 4th respondent-society that the administration of the society by the Person-in-charge committee should continue. This Court refrains from any further comment on this issue, as the matter falls within the administrative discretion of the Registrar of Co-operative Societies under the provisions of the Act. It is, therefore, for the Registrar of Co-operative Societies to take an appropriate decision with regard to the desirability to continue of the Person-in-charge management of the 4th respondent-society in the context of the decision of such committee as contained in the order dated 13-5-2002.
15. The management of the 4th respondent society had by its resolution dated 4-1-1995 removed the 5th respondent from service on account of his involvement in a serious misconduct and misappropriation of funds of the society as disclosed in the enquiry conducted under Section 51 of the Act. The Special Byelaws of the 4th respondent-society did not inhere any power in the Managing Committee to review its own decision in the area of disciplinary proceedings where such management had imposed a punishment of removal or dismissal against its employee. The 5th respondent had not challenged his removal by the order of the 4th respondent-society dated 4-1-1995. However, without any power, authority or jurisdiction, the person-in-charge committee of the 4th respondent-society by its order dated 22-7-1995 had illegally superseded the order of removal dated 4-1-1995 and reinstated the 5th respondent into service, though continuing him under suspension. This order is patently without jurisdiction and nullity. This order was set at naught by the elected body by its resolution dated 6-9-1995 after it assumed office on 26-7-1995. Against this decision dated 6-9-1995, the 5th respondent preferred an appeal to the District Collector under Special Bye-law 12(3) of the Bye-laws of the 4th respondent-society. The District Collector affirmed the order of the society dated 6-9-1995. Under these circumstances, after the appellate authority had confirmed the resolution of the society re-affirming the 5th respondent's removal from service, the 4th respondent-society had not the power, authority or jurisdiction to re-consider the removal of the 5th respondent. The conduct of the Person-in-charge committee of the 4th respondent-society in reviewing the order dated 6-9-1995 is seen to be not only without jurisdiction and illegal but also patently improper. The reasons recorded by the Person-in-charge Committee for reinstatement of the 5th respondent are clearly perverse. A person found guilty of gross misconduct and misappropriation of the funds of the society, not only in the enquiry initiated under Section 51 of the Act, and in a resolution of the management of the society, but whose misconduct and involvement in the misappropriation has also been clearly recorded and confirmed by the appellate authority and the District Collector, could not have been found to be a responsible person whose service are essential for the day to day administration and well being of the society. This Court records its serious concern as to the manner in which the Person-in-charge Committee of the 4th respondent has conducted its affairs in administering the 4th respondent-society.
16. Mr. Udaya Bhasker, learned Counsel for the 5th respondent would place reliance on the judgment of a Division Bench of this Court in Ch. Ankamma v. Registrar of Co-operative Societies, Hyd., (DB), and urged that the writ petition is not maintainable against the 4th respondent-society or against its order impugned in the writ petition. This submission does not commend itself to this Court. The judgment relied upon by the learned Counsel Mr. Udaya Bhasker referred to supra is an enunciation of the well settled principle that 'no writ petition is maintainable against a Co-operative Society in a situation where an employee questions his removal from the service of such Society on the ground of violation of byelaws of the society'. In a series of decisions of the Apex Court and this Court, including the Full Bench decision of this Court in Sri Konaseema Co-operative Central Bank Limited v. N. Seetharam Raju, AIR 1990 AP 171 (FB), the principle has been more or less enunciated that the byelaws of a society have no statutory force and that a Co-operative Society, only on account of being registered under the Act cannot ipso facto be entitled to be characterized as an agency or instrumentality of the State.
17. In the case on hand, it is, however, seen that the special byelaws governing the service conditions of a Secretary, are required to be and have been, issued by the society after having been framed by the Registrar as required under Rule 72 (3) of the Rules. As these Rules have been framed by the Registrar in exercise of powers available under the Statutory Rules, these Rules must be characterized as instruments having a statutory flavour and statutory underpinnings. Consequently, these Rules create rights and enjoin duties, which are enforceable and adjudicable in public law fora. On this analysis, this Court is of the view that specific service conditions, rights and liabilities of Secretaries of the Co-operative Societies allotted to such Societies under the decaderised disposition of Section 116(AA) of the Act and in whose regard Rules have been framed by the Registrar under Rule 72(3) of the Rules and have been adopted by the societies, are amenable to adjudication under public law parameters, including under Article 226 of the Constitution of India.
18. On the analysis of the facts and circumstances of the case and the legal position, the order of the 4th respondent dated 13-5-2002 is illegal and is accordingly set aside. The writ petition is allowed. There shall be no order as to costs.