Allahabad High Court
Dharmendra Singh vs Dy. Registrar Cooperative Societies ... on 21 August, 1998
Equivalent citations: (1999)1UPLBEC224
JUDGMENT Sudhir Narain, J.
1. The petitioner has challenged the validity of the resolution dated 19.11.1998 resolving to remove the petitioner from the service of Co-operative Federal Authority as also consequential order dated 12.2.1998 passed by the Deputy Registrar, Co-operative Societies/Chairman, Regional Committee and the order dated 19.2.1998 passed by the District Assistant Registrar/Chairman, District Committee.
2. The petitioner was appointed by the U.P. Co-operative Union, Lucknow on the post of Co-operative Supervisor in the district of Lakhimpur Kheri in the year 1977. The petitioner was thereafter transferred to various other societies. He was placed under suspension vide order dated 23.12.1995 by the Assistant Registrar Co-operative Societies exercising his power as Chairman of District Committee constituted under the Co-operative Federal Authority (Business) Regulations, 1976. The disciplinary proceedings were taken against him. On 19.1.1998 Kshetriya Committee Sahkari Sangh Pradhikari (P.C.U.), Bareilly Region, Bareilly passed Resolution No. 8 resolving to remove the petitioner from service. On the basis of resolution dated 19.1.1998 the Deputy Registrar, Co-operative Societies passed the impugned order dated 12.2.1998 and District Assistant Registrar passed on order on 19.2.1998 removing the petitioner from service.
3. The impugned orders are appealable under Regulation 70 of Co-operative Federal Authority (Business) Regulations, 1976. The contention of the learned Counsel for the petitioner. Sri H.N. Tripathi, is that the services of the petitioner are to be governed by the provisions of U.P. Co-operative Societies Employees, Service Regulations, 1975 (in short 1975 Regulations), Sri K.N. Mishra. learned Counsel for the respondents, contended that the appointing authority of the petitioner is Co-operative Federal Authority and his service condition are governed by Cooperative Federal Authority (Business) Regulations, 1976. The question is which rule is applicable in the case of the petitioner who was appointed as Supervisor by the U.P. Co-operative Union (in short P.C.U.). There are three sets of Regulations framed under three difference sections of the Co-operative Societies Act, 1965.
4. One, which may be framed by the Registrar under Section 121 of the U.P. Co-operative Societies Act, 1965 (in short the Act). Section 121 of the Act empowers the Registrar to frame regulations to regulate the emoluments and other conditions of service including disciplinary control of employees in a Co-operative Society or class of Co-operative Societies and any society to Which such term are applicable is to comply with those regulations and that any orders of Registrar issued to secure such compliance. The regulation framed under this Act is to be published in the Gazette and has to take effect from the date of such publication.
5. Second, the regulations framed by an authority constituted by the State Government under sub-section (1) of Section 122 of the Act. Sub-section (2) provides that regulations framed under sub-section (1) shall be subject to approval of the State Government and shall, after such approval, be published in the gazette and shall take effect from the date of such publication and shall supersede any regulations made under Section 121. Section 122 reads as under :-
"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 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."
6. Third, the regulations framed by Federal Authorities as provided under sub-section (1) of Section 123 of the Act which reads as under:-
"123. (1) The State Government may constitute or recognize one or more co-operative federal authorities, in such manner as may be prescribed and subject to such conditions as the State Government may impose, for the supervision of Co-operative Societies or a class of Co-opertive Societies and may grant loans or subsidies to such authority or authorities in the manner prescribed."
The State Government constituted U.P. Co-operative Institutional Service Board, Lucknow (hereinafter referred to as the Board) by a notification issued on 4.3.1972 as amended by Notification dated 7.2.1973. The Board was authorized to frame service regulations in respect of service conditions of employees of the societies mentioned in the aforesaid notification. The apex level societies are also mentioned in the aforesaid notification. The Board framed U.P. Co-operative Societies Employees, 'Service Regulations, 1975 (hereinafter referred to as Regulations, 1975 which was published in the Official Gazette on 6.1.1976. The Regulations provided for recruitment, training and disciplinary control of the employees of Co-operative Societies mentioned in the notification.
7. The Governor issued a notification on 13.2.1976 recognizing U.P. Co-operative Union, Lucknow (P.C.U.) as Co-opertive Federal Authority for all primary agricultural credit societies (wherein Central Banks are included), Co-operative Unions and marketing societies. The notification is reproduced below :-
"Notification No. C-26/2-12-1976, dated 13.2.1976 published in U.P. Gazette dated 6th March, 1976 at page 663.
1. In compliance of Section 123 (1) of U.P. Co-operative Societies Act, 1965, U.P. Act 11 of 1965, read with Rule 390 (b) of U.P. Cooperative Societies Rules, 1965. The Governor is pleased to recognize U.P. Co-operative Union Limited (P.C.U.) as Co-operative Federal Authority for all the Primary Agricultural Credit Societies (wherein Central Banks are included), Co-operative Unions and marketing Societies.
2. The aforesaid Co-operative Federal Authority shall have the right of appointment, transfer, disciplinary action and removal in respect of supervisors for the supervision of primary agricultural Credit Societies, Secretaries for the working of Co-operative Unions, Accountants and Store-keepers for working in the Marketing Societies.
3. (i) At the Regional Administrative shall be an Authority Administrative Committee of Co-operative Federal Authority for the working which shall be constituted as under :
(1) Additional Registrar (Administration), Co-operative Societies, U.P.-Chairman, (2) Two Directors nominatad by the Committee of Management of U.P. Co-operative Union Limited (CU)-Member.
(3) Secretary, U.P. Co-operative Bank Limited, Lucknow- Member (4) Secretary, U.P. Co-operative Union Limited (P.C.U.)- Member/Secretary.
(ii) This Committee shall be responsible for the recruitment, training hearing of appeal of Co-operative Supervisors and Kamdars and for laying down the policy for general administration of the Co-operative Supervisors and Kamdars.
(iii) The Secretary, U.P. Co-operative Union Limited shall also be the Member/Secretary of Authority 'Administrative Committee' who shall be the Chief Executive Officer. He shall be the officer of the Co-operative Department and shall not be the officer of the rank lower than the level of Deputy Registrar.
(iv) Co-opertive Federal Authority shall appoint one Additional Secretary for assisting Member/Secretary. He shall be the officer of the Co-operative Department and shall not be of rank lower than the level of Assistant Registrar Co-operative Societies of the Department.
4. At the regional level the right of appointment in respect of Co-operative Supervisors and Kamdars recruited and trained by the Authority Administrative Committee shall be with the Deputy Registrar, Co-operative Societies of the region who shall be responsible for making transfers within the region and for the quick disposal of all matters relating to service of the Supervisors and Kamdars in the capacity of appointing authority.
5. (i) At the District level there shall be a District Committee for the efficient administrative control of Co-operative Supervisors and Kamdars of which following shall be the members :
(1) District Assistant Registrar Co-operative Societies Chairman (2) District Superintendent, U.P. Co-operative Federation Ltd.- Member (3) Secretary, District Co-operative Bank Limited.- Member/Secretary,
(ii) This Committee shall have the right to transfer Supervisor and Kamdars within the District to maintain their character roll and for which it shall also be responsible. This Committee shall also have the right for suspending the Supervisors and Kamdars.
6. The members of the Committee at State level, Regional level and at District level shall be ex officio and honrary.
7. The Chairman and members of the Committee of Co-operative Federal Authority constituted at various level shall cease to remain the members of the said Committees on not remaining in their office and their places shall be occupied by the persons appointed or selected in their place.
8. The office of the State level Authority Administrative Committee shall be at Lucknow and the office of the District level, District Committee shall at the Head Quarters of the District.
9. The Co-operative Federal Authority shall frame detailed rules for the working at all the level which shall be effective after approval from the Registrar.
10. The Co-operative Federal Authority shall start functioning from the date of issue of this notification."
The aforesaid Notification was amended by the Notification dated 2.9.1976. The relevant part (3) (a) (2) reads as under :
"This committee shall be responsible for the recruitment, training of Co-operative Supervisors and Kamdars and for laying down the policy with the approval of the Registrar relating to taking of the contribution from the concerned societies for their keeping. This Committee shall be responsible for making arrangement for the recruitment and training of Co-opertive Supervisors and Kamdars, hearing appeals according to the provisions of rules, disposal of all the administrative and service matters and for their transfer outside the region."
8. The Federal Authority under Clause 9 of the Notification dated 6.3.1976 has framed U.P. Co-operative Federal Authority (Business) Regulations, 1976. These regulations have been approved by the Registrar. The Business Regulations are devided into two parts: (i) the working regulations and (ii) the service regulations. The authority has been defined as U.P. Co-operative Union Limited, Lucknow under Section 123(1) of the Act.
9. The first contention of the learned Counsel for the petitioner is that U.P. Co-opertive Union Limited, Lucknow is Apex level society as defined under Section 2 (a-4) of 1965 Act and the employees of such U.P. Co-operative Union, Lucknow (P.C.U.) will be governed by the regulations framed by the U.P. Co-opertive Societies Employees Service Regulations, 1975 as the Board has been empowered to frame regulations regarding service conditions of the employees of Apex level society. Section 122 of the Act provides that the State Government may constitute authority or authorities in such manner as may be prescribed, for the recruitment, training an disciplinary control of the employees of Co-operative Societies, or a class of Co-operative Societies. The State Government issued Notification No. 366-C/XII-C-3-36-71, dated 4th March, 1972, as amended by Notification dated February 7, 1973 which provided that U.P. Co-operative Institutional Service Board can frame rules for recruitment training and disciplinary control of the Apex Level Societies etc. The Notification reads as under :-
"In pursuance of the provisions of sub-section (1) of Section 122 of the Uttar Pradesh Co-operative Societies Act, 1965 (U.P. Act No. XI of 1966) read with Rule 389-A of the U.P. Co-operative Societies Rules, 1968, the Governor is pleased to constitute following authority known as the U.P. Co-operative Institutional Service Board (hereinafter referred to as the Board, for the recruitment, training and disciplinary control of the employees of the Apex Level Societies Central of Primary Societies (excluding the Co-operative Cane Development Unions which include the U.P. Co-operative Cane Unions Federations Ltd., Lucknow) whose areas of operation extends to more than one District or State, District or Central Co-operative Banks, Districts Co-operative Federation, Co-operative Milk Unions including Kanpur Co-operative Milk Board, Co-operative Cane Sugar Factories, Co-operatives Textile Mills and U.P. Co-operative Housing Federation."
10. As pointed out above the Government issued a Notification dated 13.2.1976 whereby U.P. Co-operative Unions has been recognized as a Federal Authority and it was empowered to frame regulations under Clause 9 of the Notification to frame rules for the working at all the level which was to be effective after approval from the Registrar. The Board has been permitted to frame rules in respect of employees of the Apex Level Society which includes U.P. Co-operative Union but U.P. Co-operative Union has been declared as Federal Authority under Section 123 and the Notification issued under the said provision confers power on such Federal Authority to frame regulations in respect of employees mentioned in the Notification. The Supervisors under the control of the Federal Authority are to be governed by the Regulations framed by such authority. The regulations framed under Section 122 of the Act by the Board constituted under Section 122 of the Act will be subject to the provisions of any regulations framed by a Federal Authority notified under Section 123 of the Act. It is settled principle of law that special provision will prevail over the general provisions of law vide Municipal Board, Barielly v. Bhacat Oil Company and Ors., AIR 1990 SC 548.
11. In Ram Chandra Dixit v. Deputy Registrar, Co-operative Societies, 1980 UPLBEC 325, a Division Bench of this Court held that Section 123 deals with the special contingency and Section 122 of the Act deals with the situation different as contemplated under Section 123. It was observed as under :-
"Section 122 of the Act deals with a situation different than contemplated by Section 123. Section 122 is general in nature, It confers powers on the State Government to constitute an authority for the various purposes mentioned therein which would have control over the employees of the Co-operative Societies. Section 123 made a special provision empowering the State Government constitute or recognize one or more Co-operative Federal Authorities. The object of constituting or recognizing a Federal Authority is different. For the purpose of giving affect to Section 122, the State had framed Rules 389-A whereas for the Section 123, the rule made was Rule 390. Reading these two Sections viz. Sections 122 and 123 and the Rules 389-A and 390, the inescapable conclusion appears to be that the later in question is special in nature and would apply to Federal Authority alone the service condition of the specified category of employee working in a Federal Authority are governed by the Co-operative Federal Authority (Business) Regulations."
12. In Parmeshwar Dayal Shukla v. The Deputy Registrar, Co-operative Societies, U.P., Allahabad Region, Allahabad and Ors., 1992 UPLBEC 398, a Division Bench of this Court held that the Supervisors of the Co-opertive Union are governed by the U.P. Co-opertive Federal Authority (Business) Regulations, 1976.
13. It may further be noted that Rule 389-A of U.P. Co-operative Societies Rules, 1968 provides that the authority or the authorities under Section 122 may be constituted by the State Government by notification published in the Official Gazette. Rule 390 provides that the State Government, after consulting the Chairman of all the Apex Level Co- operative Societies of the State may for the purpose of Section 123 by notification published in Official Gazette, recognize every such Apex Society as Co-operative Federal Authority in respect of the Societies which are affiliated to that Apex Society and also U.P. Co-operative Union (P.C.U) as Co-operative Federal Authority and one or more appropriate Apex Level Society as Co-operative Federal Authority or Authorities.
14. In view of the above, the Federal Authority constituted by a notification under Section 123 is entitled to frame regulations under notification issued by the Governor and such regulations will prevail over any regulation made by the U.P. Co-operative Institutional Service Board, Lucknow.
15. The second contention of the learned Counsel for the petitioner is that the regulations framed by the Board is approved by the State Government while the regulations framed by the Federal Authority is approved only by the Registrar and unless it is approved by the State Government, it will not be application as regards the employees who are covered by the definition of Apex Level Societies which includes U.P. Co-operative Union. The regulation framed by the Federal Authority requires approval of the Registrar as provided under Clause 9 of the Notification dated 13.2.1976 issued by the Governor under Section 123 of the Act. Sub-section (2) of Section 122, provides for the approval by the State Government in respect of regulation framed under sub-section (1) of Section 122 of the Act but not under Section 123 of the Act. Sub-section (2) of Section 122 of the Act further provides that the regulations made under Section 121 of the Act shall stand supersede after the regulations are framed by the Board under sub-section (1) of Section 122 of the Act. This sub-section does not refer to any regulation framed under Section 123 of the Act. If the intention of the Legislature had been to supersede the regulation framed by a Federal Authority under Section 123 of the Act it could have also referred to the regulation framed by a Federal Authority under Section 122 (2) of the Act.
16. Learned Counsel for the petitioner has placed reliance upon the decision of the Supreme Court in Om Prakash Maurya v. U.P. Co-operative Sugar Factories Federation, Lucknow and Ors., AIR 1986 SC 1844, wherein it was held that U.P. Co-operative Sugar Factories Federation Employees Service Rules, 1976 do not over-ride Service Regulations of 1975, U.P. Co-operative Sugar Factories Federation Service Rules, 1976 was framed by the Cane Commissioner is exercise of its power under sub-section (1) of Section 121 of the Act published in the U.P. Gazette dated September 4, 1976. It was held that in view of sub-section (2) of Section 122 of the Act these Regulations will stand superseded. The Court observed as under-
"As noted earlier, the Institutional Service Board was constituted an authority under Section 122 (1) of the Act and authorized to frame regulations regulating the conditions of service of employees of the Co-operative Societies including those of Apex Level Societies. Sub-section (2) of Section 122 provides that on approval of the Regulation by the State Government any rule or regulation framed by the Registrar in exercise of its power under Section 121 (1) would stand superseded. Sub-section (1) of Section 121 confers power on the Registrar which may include any other Subordinate Officer or authority to frame rules regulating the condition of service of employees of Co-operative Societies, such rules do not require approval of the State Government. While a regulation framed by an authority constituted under sub-section (1) of Section 122 requires approval of the State Government and on such approval the regulation so framed supersedes any rules made under Section 121. The Scheme of Section 121 and Section 122 postulates that primary has to be given to regulations framed by the authority under Section 122 of the Act. If there are two set of rules regulating the conditions of service of employees of Co-operative Societies the regulations framed under Section 122 and approved by the State Government shall prevail. In this view the provisions of the U.P. Co-operative Sugar Factories Federation Service Rules, 1976 do not override Service Regulation of 1975."
17. In Om Prakash Maurya's case the Supreme Court was not considering the regulation framed by the Federation Authority under Section 123 of the Act. This case has no application in so far as those regulations which have been framed by a Federal Authority under Section 123 of the Act.
18. The petitioner being appointed as a Supervisor in U.P. Co-operative Union is governed by the provisions of U.P. Co-operative Federal Authority (Business) Regulations, 1976. He has a right to file an appeal under Regulation 70 of 1976 Regulations before the authority mentioned therein. The petitioner can file an appeal before such an authority.
19. The writ petition is dismissed subject to the above observation.
20. In the facts and circumstances of the case, the parties shall bear their own costs.