# Rajendra Singh v. District Assistant Registrar,Cooperative Societies Muzaffarnagar and Ors

- **Citation:** (2019) 1 ILRA 802
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-01-31
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-v-district-assistant-registrar-cooperative-societies-44479
- **Pages:** 4

## Headnote

Sri Ravi Agarwal, S.C.

A. Regulation 85 of U.P. Cooperative
Societies
Employees'
Service
Regulations,
1975-
"Deemed
Termination" of the services of the
Petitioner.
Procedure
prescribed
in
Regulations, 1975 not followed and no
order of punishment as such has been
passed-Order
talks
of
termination
though under the Rules, termination is
not a punishment and it talks of removal
or dismissal- deemed termination of
petitioner is of no legal consequence and
is a nullityand without jurisdiction. Writ
Petition allowed with costs.
 (Para 9,10,11,12,13,14) (E-3)

## Text

802 INDIAN LAW REPORTS ALLAHABAD SERIES
or
opportunity,"
though
subsequent
regularization order is not of much
consequence in view of nature of
appointment, as already discussed above.

16. Any order of regularization, if
cancelled, results in civil consequence. In
similar circumstances where an order of
confirmation was cancelled without notice, a
Division
Bench
of
this
Court
in
D.N.Upadhiya and another Vs The State of
U.P. and another 1985 UPLBEC 1112,
observed in para 10 as under:

"It is, therefore, well established from
the law laid down by their Lordships that there
can be a substantive vacancy in a temporary
post also. In view of the above, the petitioners,
who were appointed as Senior Auditors
although temporary, would be deemed to have
beenappointed in a substantive capacity. Once
this position is reached, their rights have
crystallised. The petitioners were confirmed and
subsequently deconfirmed. This could not be
done, for their rights had crystallised. "

17. In view thereof, writ petition is
allowed.
Impugned
order
dated
22.07.2000 (Annexure 5 to the writ
petition) is hereby set aside.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ- A No. 30914 OF 1991

Rajendra Singh ...Petitioner
Versus
District Assistant Registrar,Cooperative Societies
Muzaffarnagar and Ors. ...Respondents

Counsel for the Petitioner:
Sri A.Kumar, Sri Sharad Malviya.
Counsel for the Respondents:
Sri Ravi Agarwal, S.C.

A. Regulation 85 of U.P. Cooperative
Societies
Employees'
Service
Regulations,
1975-
"Deemed
Termination" of the services of the
Petitioner.
Procedure
prescribed
in
Regulations, 1975 not followed and no
order of punishment as such has been
passed-Order
talks
of
termination
though under the Rules, termination is
not a punishment and it talks of removal
or dismissal- deemed termination of
petitioner is of no legal consequence and
is a nullityand without jurisdiction. Writ
Petition allowed with costs.
 (Para 9,10,11,12,13,14) (E-3)

(Delivered by Hon'bleSudhir Agarwal, J.)

1. Heard Sri Sharad Malviya,
learned counsel for petitioner, Sri Ravi
Agarwal, learned counsel for respondentSocieties
and
perused
the
material
available on record.

2. This writ petition filed under
Article 226 of Constitution of India is
directed against order dated 09.09.1991
(Annexure-6 to the writ petition) passed
by Secretary, Shamli Sahkari KrayVikray Samiti Ltd. Gandhi Ganj, Shamli,
District
Muzaffarnagar
informing
petitioner that he has not deposited certain
funds of Cooperative Society, therefore,
should deposit dead-stock and hand over
charge
and
also
pay
the
amount
embezzled, by 12.10.1991, failing which
his services shall be deemed to have been
terminated and no separate order will be
passed.

3. Facts in brief, giving rise to the
present writ petition, are that petitioner
was appointed as Accountant in 1984 in
Shamli Sahkari Kraya Vikray Sahkari
1 All. Rajendra Singh Vs. District Assistant Registrar, Cooperative Societies Muzaffarnagar and Ors. 803
Samiti
Ltd.,
Shamli,
District
Muzaffarnagar (hereinafter referred to as
"Society"). He was also confirmed on the
said post after approval of Deputy
Assistant Registrar. He was allowed to
officiate as "Secretary" of Society from
10.09.1990 to 13.02.1991. A complaint
was made by successor Secretary of
Society to Administrator of Society on
19.07.1991
whereupon
Administrator
required petitioner to deposit the amount,
allegedly misappropriated, by 27.07.1991
failing which he shall be deemed to be
under suspension. Petitioner submitted
reply dated 26.07.1991 whereafter order
of suspension was passed on 06.08.1991.
By another order dated 24.08.1991,
petitioner was directed to handover
charge of record by 31.08.1991 else
charge would be taken through District
Magistrate. Thereafter, impugned order
was passed on 09.09.1991 directing
petitioner to handover charge of record,
dead-stock and the alleged amount
embezzled, by 12.10.1991, failing which
he shall be deemed to have been
terminated and no separate order shall be
passed. Aforesaid order has been passed
by
Secretary
of
Society.
Petitioner
submitted reply dated 16.09.1991 and also
handed over charge of all dead-stock and
records
on
06.10.1991.
However,
Administrator and Secretary of Society
did not permit petitioner to function on
his post stating that his services stood
terminated vide order dated 09.09.1991,
hence, this writ petition has been filed by
petitioner challenging the said order.

4. A supplementary affidavit has
also been filed stating that suspension
order dated 06.08.1991 was challenged by
petitioner in a writ petition wherein an
interim order was passed. Thereafter
petitioner was served with a charge-sheet
dated 07.08.1991 containing six charges
alleging that petitioner is guilty of
misappropriation
of
Rs.
64,969/-.
Aforesaid charge-sheet was issued by
Additional
District
Magistrate
(Consumer)/Enquiry
Officer,
Muzaffarnagar. It is also said that a
criminal case under Section 409 IPC was
registered against petitioner which has
resulted in acquittal vide judgment dated
08.08.1996 passed by Sri C.S. Karol,
Additional Chief Judicial Magistrate,
Kairana in Criminal Case No. 340/9 of
1994. It is also said that an enquiry was
conducted
by
Additional
District
Cooperative
Tehsil
Shamli,
District
Muzaffarnagar wherein it was found that
alleged
complaint
contained
forged
signatures. Further a disciplinary enquiry
was
initiated
against
petitioner
on
19.07.1991 and after considering his
reply, Additional District Cooperative
Officer,
in
his
noting,
exonerated
petitioner in respect of charges-1 and 6
but held charges- 2, 3, 4 and 5 proved. In
respect of charge-2, Society, however,
subsequently recovered amount from
another employee, Tej Pal Singh, to the
tune of Rs. 6548.09. In respect of charges3 and 4, the matter is pending for
arbitration
before
District
Assistant
Registrar
Cooperative
Society,
Muzaffarnagar. In respect to charge-5,
criminal case has already resulted in
acquittal of petitioner. Subsequently, an
order was passed taking into account the
fact that the present writ petition was
dismissed in default on 26.10.2004 but I
may place on record that this writ petition
has been subsequently restored vide order
dated 22.01.2010.

5. A counter affidavit has been filed
by Society admitting that petitioner was
suspended from the post of Accountant
804 INDIAN LAW REPORTS ALLAHABAD SERIES
with effect from 06.08.1991 on the charges of
misappropriation of Rs. 1,02,404/-, mentioned
in the charge-sheet dated 19.07.1991. It is also
admitted that petitioner deposited 16 cylinders
on 02.08.1991 and five cylinders on
05.08.1991. It is also submitted that Sri Suresh
Pawar, Assistant District Cooperative Officer
(Consumer), Muzaffarnagar was Enquiry
Officer
who
submitted
report
dated
07.08.1991 holding petitioner guilty of
misappropriation of Rs. 64,969/- and said
report was submitted by Enquiry Officer after
examining petitioner's reply dated 26.07.1991.
Petitioner
did
not
deposit
alleged
misappropriated amount hence his services
stood terminated by order dated 12.10.1991
and said termination was duly approved by
Managing
Committee
of
Society
on
23.10.1991 as per bye-laws. It is reiterated in
para-16 of counter affidavit that petitioner
stood terminated with effect from 12.10.1991.

6. In the counter affidavit, it is not
stated anywhere that any order of
termination was ever passed against
petitioner and reference is made only to
order dated 09.09.1991 wherein it was
said that either he should handover charge
of records and deposit certain amount by
12.10.1991 failing which his services
shall stand terminated.

7. When questioned, learned counsel for
respondents also could not show that after
issue
of
charge-sheet
when
petitioner
submitted reply, Enquiry Officer fixed any
date, time and place to hold oral enquiry
wherein employer proved the charges and
thereafter opportunity was given to petitioner
to defend his case and thereafter inquiry report
was submitted which ultimately resulted in
order of punishment.

8. Reference is also made to
Regulation 85 of U.P. Cooperative
Societies Employees' Service Regulations,
1975
(hereinafter
referred
to
as
"Regulations, 1975"). Learned counsel for
respondents, however, could not show,
from record, that such procedure was
followed at all.

9. In this case, it appears that a charge sheet
was issued, reply was received and thereafter
Enquiry Officer submitted report. Then a strange
order was passed that either petitioner should
deposit certain amount etc. by 12.10.1991 failing
which he shall be deemed to have been
terminated. In my view, entire proceedings,
including alleged order of termination, therefore,
falls on the following ground:

i. Regulation 85 of Regulations
1975 was not followed.

ii. The order talks of termination
and not dismissal or removal though
under the Rules, termination is not a
punishment and it talks of removal or
dismissal.

10. Coming to first aspect, I would like
to refer the decision rendered in Chamoli
District Co-operative Bank Ltd. Vs.
Raghunath Singh Rana and others, AIR
2016 SC 2510, wherein Regulation 85 itself
was considered, which is also applicable in the
present case. Supreme Court has categorically
held that unless departmental enquiry is
conducted, following procedure prescribed in
Regulation 85, any order of punishment
without following such procedure would be
illegal. Court has also laid down certain
mandatory aspects of procedure which have to
be followed before imposing a major penalty
and the same are as under:-

"i) The enquiries must be
conducted bona fide and care must be
taken to see that the enquiries do not
become
empty
formalities.
1 All. Shikha Singh and Ors. Vs. State of U.P. and Ors.
805

ii) If an officer is a witness to
any of the incidents which is the subject
matter of the enquiry or if the enquiry was
initiated on a report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes
known after the appointment of the
Enquiry Officer, during the enquiry, steps
should be taken to see that the task of
holding an enquiry is assigned to some
other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps
first to lead evidence against the
workman/delinquent charged and give
an opportunity to him to cross-examine
the witnesses of the employer. Only
thereafter, the workman/delinquent be
asked whether he wants to lead any
evidence
and
asked
to
give
any
explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply
a copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any." (Emphasis added)

11. Since in the present case,
procedure prescribed in Regulations, 1975
has not been followed and no order of
punishment as such has been passed,
therefore, alleged deemed termination of
petitioner is of no legal consequence and
it is a nullity.

12. Now, coming to second aspect, I
find that only such punishment can be
awarded which is prescribed under Rules
and any punishment which is not provided
in Rules is without jurisdiction. Dismissal
and removal are termination of specific
kinds while "termination" by itself may be
punitive
or
simplicitor.
Sometimes
cessation of contract of employment due
to resignation, retirement etc., is also
within the ambit of termination. Order of
termination,
therefore,
cannot
be
construed as one of the punishment
prescribed in Rules since termination by
itself is not one of the punishment
prescribed in Rules but specific kinds of
termination are mentioned in Rules and
only such punishment can be imposed and
not one which is not prescribed in Rules
as held by Supreme Court in Vijay Singh
vs. State of U.P. and others, JT 2012(4)
SC 105.

13. In view of above discussion, I
have no hesitation in holding that alleged
"deemed termination" of petitioner with
effect from 12.10.1991 pursuant to order
dated 09.09.1991 is patently illegal and
without jurisdiction.

14. In the result, the writ petition is
allowed. Order dated 09.09.1991 insofar
as it talks of "deemed termination" of
petitioner on and after 12.10.1991 is
hereby set aside. Petitioner shall be
entitled for all consequential benefits and
also a cost of Rs. 7,500/.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2019

BEFORE
THE HON'BLE PRAKASH PADIA, J.

Writ- A No. 19737 OF 2018
With
Other 264 Writ A Cases.

Shikha Singh and Ors....Petitioners
Versus
State of U.P. and Ors....Respondents