Allahabad High Court
Narendra Pratap Singh vs State Of U.P. And 2 Others on 3 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 1159
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- WRIT - A No. - 12943 of 2020 Petitioner :- Narendra Pratap Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sujeet Kumar Rai Counsel for Respondent :- C.S.C.,D P Singh,D.P.Singh Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner is a substantively appointed Cadre Secretary and is a member of the Cadre created under 'The Uttar Pradesh Primary Agricultural Cooperative Credit Societies Centralised Service Rules, 1976'. He is aggrieved by an order of suspension dated 26.10.2020 passed by the Member Secretary of the District Administrative Committee and Assistant Commissioner cum Assistant Registrar Cooperative Ghazipur. Order impugned records that upon an inspection carried out the inspector has found shortage of 551.49 quintals of wheat and thereby has caused financial loss to the tune of Rs. 11 lakhs to the Society concerned. The charge of officiating secretary has been given to one Vijendra Pandey. A disciplinary inquiry has been initiated with the appointment of an inquiry officer.
2. The order impugned is assailed on the ground of jurisdiction inasmuch as the authority competent to initiate disciplinary proceedings is the District Administrative Committee whereas power of suspension is with the Member Secretary with prior approval of the District Assistant Registrar.
3. Reliance is placed upon a Full Bench judgment of this Court in the case of Ram Chandra Pandey Vs. District Administrative Committee U.P. Primary Agricultural Cooperative Societies Centralised Service, Bahraich through its Member Secretary, 1997 (3) UPLBEC,1747. Learned counsel has further placed reliance upon a judgment of this Court in Writ Petition No. 4725 of 2019 (Rajendra Nath Singh Vs. State of U.P. and others).
4. Per contra, Sri D.P. Singh, learned counsel for the respondents submits that the order of suspension and initiation of disciplinary inquiry has subsequently been ratified by the District Administrative Committee in its meeting held on 25.1.2020. Reliance is placed upon a Division Bench judgment of this Court in Special Appeal No. 46 of 2006 and also a judgment in Writ Petition No. 11643 of 2019 (Shiv Bahadur Singh Vs. State of U.P. and others). It is urged by Sri Singh that the decision of the Member Secretary has since been rectified by the District Administrative Committee as such the exercise of jurisdiction by the Member Secretary would be treated to be in pursuance of a valid authorisation made by the competent authority i.e. District Administrative Committee. Reliance is also placed upon a judgment of Supreme Court in the case of National Institute of Technology and another Vs. Pannalal Choudhary and another, 2015 AIR (SC) 2846 to support the plea of ratification.
5. I have heard learned counsel for the parties and have perused the materials on record.
6. The order of suspension records that serious allegations of financial embezzlement exists against the petitioner in respect of which a disciplinary inquiry is initiated and Addl. District Cooperative Officer, Jakhonia has been appointed as inquiry officer. It is this decision which is subsequently rectified by the District Administrative Committee on 25.1.2020.
7. Sri S.K. Rai, learned counsel for the petitioner also raises an objection to the resolution of the District Administrative Committee and submits that the ratification is only to the order of suspension but there is no independent decision by the District Administrative Committee to initiate disciplinary action against the petitioner and, therefore, the ratification would not amount to a valid authorisation by District Administrative Committee to initiate disciplinary action against the petitioner.
8. Before examining the respective pleas of the counsel for the parties, it would be appropriate to notice relevant the statutory provisions in light of which the issue needs to be examined.
9. Petitioner is an employee of the Cooperative Society which is a registered society under the 'U.P. Cooperative Societies Act, 1965'. Sections 122 and 122-A of the Act of 1967 provides for the State Government to constitute an authority for controlling the employees of a class of a Cooperative Society and also for creation of one or more centralised services for such class of society, as is found appropriate by the State.
10. In exercise of power under Section 122-A of the Act, Rules of 1976 have been framed. Rule 2 'c' of the Rules provides for centralised services whereas Rule 2 'd' specifies District Level Committee. Powers of the District Administrative Committee have been specified in Rule-13. Sub rule (i) of Rule-13 is relevant and is reproduced below:-
13. Powers and duties of the District Administrative Committee:- (1) The District Committee shall be the Appointing Authority of the members of the Centralised Service in the district and shall also have the following duties and responsibilities:-
(i) to exercise general control and supervision over the members over the members of the Centralised Service in the district."
1.
11. The powers of Member Secretary of the District Administrative Committee has also been specified in Rule-14. Sub rule (iv) and (v) of Rule-14 thereof reads as under:-
"14. Powers and duties of the Members/ Secretary of the District Committee:- Subject to the control and supervision of the Chairman of the District Committee, the Member-Secretary of the District Committee shall:-
(iv) ensure effective supervision over the members of the Centralised Services;
(v) have power of suspending a member of the Centralised Service with the prior concurrence of Assistant Registrar."
12. Statutory Regulations have also been framed in the year 1978 in respect of centralised services known as 'The Uttar Pradesh Primary Cooperative Credit Societies Centralised Service Regulations, 1978'. Regulation-59 (f) talks about suspension and provides that the power of suspension shall vest in the District Committee and is reproduced:-
"59 (f) A member other than one referred to in clause (e) above maybe placed under suspension by the District Committee or any other officer authorised for the purpose in the following circumstances;
(i) when the said authority that a prima facie case exists, which is likely to result in the removal, dismissal or reduction in rank of the member,
(ii) when an inquiry into his conduct is immediately contemplated or is pending and his further continuance on his post is considered detrimental to the interest of the society or the authority;
(iii) when a complaint against him of any criminal offence is under police investigation for which he has been arrested or he is under going trial in a court of law for an offence under the Indian Penal Code, U.P. Cooperative Societies Act, 1965 or any other Act or charges have been proved against him by a Criminal Court;
Provided that during suspension the member shall be entitled to a subsistence allowance equal to one third of his pay;
Provided further that a member who is under suspension on the date of coming into force of these regulations shall continue to draw such proportion of his pay and such allowances as he was allowed to draw for the period of suspension;
Provided also that no payment of the subsistence allowance shall be made unless the member has furnished a certificate and the authority passing the order of suspension is satisfied that the member was not engaged in any other employment, business, profession or vocation and had not earned remuneration therefore during the period of his suspension;
(iv) if the period of suspension extends beyond six months for no fault of the member concerned, the subsistence allowance shall be increased to half of his pay;
(v) when a member is reinstated the authority competent to order the reinstatement is of the opinion that the member has been fully exonerated or the suspension was fully unjustified, the member shall be given the full pay and allowance to which he would have been entitled, had he not been suspended."
13. A perusal of the above provision would clearly go to show that the power to exercise disciplinary control as also to a member of service under suspension vests with the District Administrative Committee. The Member Secretary can only exercise power of supervision over a cadre secretary but has no right to exercise disciplinary control. The power of suspension is available with the Member Secretary subject to approval by the District Assistant Registrar but as the District Assistant Registrar is also the Member Secretary in this case, as such, the power of suspension can be exercised by the Member Secretary. However, the Member Secretary will have no right to exercise disciplinary control which could include the right to initiate disciplinary inquiry.
14. Law in that regard has also been settled by the Larger Bench in Ram Chandra Pandey (supra), wherein the Full Bench observed that the power of suspension although vests with the Member Secretary with the prior concurrence of Assistant Registrar but such power does not exist to exercise disciplinary control and, therefore, initiation of disciplinary inquiry by Member Secretary would not be within his competence. Para Nos. 16 & 17 of the Full Bench judgment is relevant for the instant controversy and is reproduced:-
"16. In all these writ petitions the Member/Secretary while suspending the petitioners has appointed Inquiry Officers to make inquiry into the alleged misconduct of the petitioners and submit their reports. The Member/Secretary can appoint an Inquiry Officer for conducting disciplinary inquiry ; but he can do so only after the disciplinary proceeding had been taken by the District Committee. It is admitted position in all these cases that the District Committee has not taken a decision initiating or contemplating the disciplinary proceedings against the petitioners. Under the circumstances, the Member/ Secretary could not have appointed Inquiry Officers for conducting inquiry. From the tenor of the impugned orders, it is apparent that the Member/Secretary while suspending the petitioners has also initiated the disciplinary proceedings. Such a course is not open to him. That apart, no attempts have been made by the respondents to justify the impugned orders by placing the relevant materials before the Court inspite of the averments, alleging the orders to be arbitrary and illegal. The impugned orders, therefore, cannot be sustained.
17. Our answer to the questions referred to before are as under :
(i) The Member/Secretary can suspend a member of the centralised service under Regulation 59 (1) (f) (i) in the absence of a decision of the District Committee. Similarly, he can suspend a member under Regulation 59 (1) (f) (iii) without any decision of the District Committee. But a member of the service cannot be suspended by the Member/Secretary under Regulation 59 (1) (f) (ii) in the absence of a decision by the District Committee contemplating or initiating disciplinary inquiry. The decisions of this Court taking the view contrary to what is contained in this judgment stand overruled.
(ii) When the District Assistant Registrar is himself a Member/ Secretary of the District Committee, he can suspend a member of the centralised service without any concurrence of Assistant Registrar. In such a case, the provisions requiring the prior concurrence of the Assistant Registrar stand dispensed with.
(iii) The District Committee is fully competent to suspend a member of the centralised service.
(iv) The Member/Secretary cannot appoint an Inquiry Officer to conduct the disciplinary proceedings in the absence of decision of the District Committee initiating or contemplating the disciplinary proceedings.
(v) The impugned orders of suspension are illegal and cannot be sustained."
15. In the facts of the present case, disciplinary inquiry has also been initiated by the Member Secretary although there existed no decision by the District Administrative committee in that regard. The order of the Member Secretary to the extent of initiating disciplinary enquiry is clearly beyond his jurisdiction.
16. In the facts of the present case however a decision has susequently been taken by the District Administrative Committee to rectify the decision of the Member Secretary to place the petitioner under suspension and to appoint the inquiry officer. This resolution dated 25.1.2021 has been placed before the Court and has been taken cognizance of vide order dated 28.1.2021. This decision of committee, however, is questioned on the ground that no specific decision has been taken by the District Administrative Committee to initiate disciplinary proceedings against the petitioner and that the only resolution is to confirm the order of suspension. This contention does not appear to be correct inasmuch as the District Administrative Committee has taken note of the charges levelled against the petitioner and has categorically approved not only the suspension of the petitioner but has also approved the appointment of the inquiry officer. Although the resolution does not specifically states about the decision taken to initiate disciplinary action but a composite reading of the resolution would make it explicit that the District Administrative Committee has resolved to approve initiation of disciplinary action also. The resolution to appoint inquiry officer would clearly include the decision to initiate disciplinary action against the petitioner. In such circumstances, even if the decision of the Member Secretary was without an authority of law insofar initiation of disciplinary action against the petitioner is concerned but such act clearly stands ratified by the subsequent decision of the District Administrative Committee.
17. Law with regard to ratification of decision has been examined by the Supreme Court in the case of National Institute of Technology (supra). The law on the subject has been noticed in para Nos. 35 to 41 of the judgment which are reproduced:-
"(35) The expression "Ratification" means "the making valid of an act already done". This principle is derived from the Latin maxim "ratihabitio mandato aequiparatur" meaning thereby "a subsequent ratification of an act is equivalent to a prior authority to perform such act." It is for this reason; the ratification assumes an invalid act, which is retrospectively validated.
(36) The expression "ratification" was succinctly defined by the English Court in one old case, Hartman Vs. Hornsby reported in 142 Mo 368 44 SW 242, 244 as under:
" ''Ratification' is the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance."
37) The law of ratification was applied by this Court in Parmeshwari Prasad Gupta Vs. U.O.I (1973) 2 SCC 543. In that case, the Chairman of the Board of Directors had terminated the services of the General Manager of a Company pursuant to a resolution taken by the Board at a meeting. It was not in dispute that the meeting had been improperly held and consequently the resolution passed in the said meeting terminating the services of General Manager was invalid. However, the Board of Directors then convened subsequent meeting and in this meeting affirmed the earlier resolution, which had been passed in improper meeting. On these facts, the Court held, "Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16-12-1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on 17-12-1953."
(38) This view was approved by this Court in High Court of Judicature for Rajasthan Vs. P.P. Singh & Anr. (2003) 4 SCC 239.
(39) The aforesaid principle of law of ratification was again applied by this Court in Maharashtra State Mining Corpn. Vs. Sunil (2006) 5 SCC 96. In this case, the respondent was an employee of the appellant Corporation. Consequent to a departmental enquiry, he was dismissed by the Managing Director of the appellant. The respondent then filed a writ petition before the High Court. During the pendency of the writ petition, the Board of Directors of the appellant Corporation passed a resolution ratifying the impugned action of the Managing Director and also empowering him to take decision in respect of the officers and staff in the grade of pay the maximum of which did not exceed Rs. 4700 p.m. Earlier, the Managing Director had powers only in respect of those posts where the maximum pay did not exceed Rs.1900 p.m. The respondent at the relevant time was drawing more than Rs.1800 p.m. Therefore, at the relevant time, the Managing Director was incompetent to dismiss the respondent. Accordingly, the High Court held the order of dismissal to be invalid. The High Court further held that the said defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court set aside the dismissal order and granted consequential relief. The appellant then filed the appeal in this Court by special leave. Justice Ruma Pal, speaking for three- Judge Bench, while allowing the appeal and setting aside of the Court held as under :
"The High Court rightly held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act could not be subsequently "rectified" by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, "a subsequent ratification of an act is equivalent to a prior authority to perform such act." Therefore, ratification assumes an invalid act which is retrospectively validated." "In the present case, the Managing Director's order dismissing the respondent from service was admittedly ratified by the Board of Directors unquestionably had the power to terminate the services of the respondent. Since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it."
(40) Applying the aforementioned law of ratification to the facts at hand, even if we assume for the sake of argument that the order of dismissal dated 16.08.1996 was passed by the Principal & Secretary who had neither any authority to pass such order under the Rules nor there was any authorization given by the BOG in his favour to pass such order yet in our considered view when the BOG in their meeting held on 22.08.1996 approved the previous actions of the Principal & Secretary in passing the respondent's dismissal order dated 16.08.1996, all the irregularities complained of by the respondent in the proceedings including the authority exercised by the Principal & Secretary to dismiss him stood ratified by the Competent Authority (Board of Governors) themselves with retrospective effect from 16.8.1996 thereby making an invalid act a lawful one in conformity with the procedure prescribed in Rules.
(41) In such circumstances, the respondent's grievance that the dismissal order had not been passed by the competent authority, i.e., the BOG is no longer survived."
18. In view of the fact that the District Administrative Committee has already ratified the decision of the Member Secretary not only to initiate disciplinary inquiry against the petitioner and appoint the inquiry officer but also place the petitioner under suspension as such the action of initiating disciplinary action and placing the petitioner under suspension cannot be challenged on the ground that it is not by the competent authority. Challenge laid to the order of suspension and initiation of disciplinary inquiry against the petitioner accordingly, fails.
19. So far as the charges levelled against the petitioner on merits are concerned, these are aspects which are required to be examined in the appropriate inquiry and this Court is not required to make any observation in respect thereof at this stage. It is, however, provided that the disciplinary authority shall make all endeavors to conclude the inquiry within a period of four months from today and the petitioner undertakes to cooperate with the inquiry.
20. Subject to the observations made above, this writ petition is consigned to records.
Order Date :- 3.2.2021 n.u.