High Court of Judicature at Allahabad

Reserved

Civil Misc. Writ Petition No. 18812 of 1991

G.S. Pandey

Vs.

The Managing Director/Chairman (Mills) U.P. Cooperative Spinning Mills Federation Limited B-1 Sarvodaya Nagar, Kanpur and two others

Hon'ble Prakash Krishna, J.

By means of present writ petition under Article 226 of the Constitution the petitioner has sought the quashing of the dismissal order dated 20th May, 1991 passed by respondent no. 1 (Anexure-10 to the writ petition) and the order dated 6th June, 1991 passed by respondent no. 3 (Annexure- 3 to the writ petition).

The facts of the case in brief are as follows :-

By means of letter dated 1st July, 1985 the petitioner was appointed as Security Officer by respondent no.1 on a consolidated salary of Rs. 1600/- plus free unfurnished accommodation or HRA as per the rules, initially on probation for one year from the from the date of joining. In the appointment letter it is stipulated that on satisfactory completion of probation his services would be terminable of one month's notice on either side or one month's pay in lieu thereof. It is also provided therein that the service of the petitioner shall be liable to be lent on deputation at any time to any cooperative spinning mills in the State of Uttar Pradesh. In pursuance thereof by means of an order dated 2nd July, 1985 the service of the petitioner on deputation was placed at the disposal of U.P. Sehkari Katai Mills Ltd. Baheri, district Bareilly. Subsequently he was relieved from Baheri and was placed on deputation at Kampil and ultimately by an order dated 29th September, 1989 the petitioner was sent on deputation to Sant Kabir Sehakari Katai Mills Ltd. Maghar, District Basti as Security Officer. There he was charge sheeted on 28th August, 1990 in connection with a fire accident dated 15th June, 1990 in the Mill. A copy of the charge sheet has been filed as Annexure-6 to the writ petition. A reply to charge sheet was submitted by the petitioner, a copy of which has been filed as Annexure-7 to the writ petition. Being dissatisfied with the explanation furnished by the petitioner, Sri D.K. Nag, Senior Manager (Technical) U.P. Sehkari Katai Mills Ltd. Kanpur was appointed as Inquiry Officer. The Inquiry Officer found guilty and the charges leveled against the petitioner proved. Respondent no. 1 by the impugned order dated 20th May, 1991 terminated the services of the petitioner with immediate effect. Feeling aggrieved against the aforesaid order the present writ petition has been filed on the pleas inter alia that no reasonable opportunity of hearing was afforded to the petitioner and the impugned order has been passed in utter violation of the principles of the natural justice.

In the counter affidavit, filed on behalf of the respondents it has been stated that the departmental enquiry was conducted against the petitioner. The petitioner participated in the said inquiry and cross examined the witnesses who appeared on behalf of the Mill. Witnesses namely, Narottam Patel, Kedar Singh, Shiv Shankar Verma, Ram Teerath, Ram Yash Misra, Ram Asharey and Bundoo were examined on behalf of the Mill. The petitioner examined himself as a witness as well as four other persons on his behalf namely Ramdhari Yadav, Sita Ram Tiwari, Sabhapati Pandey and Agrahari. Five documents were filed by him. The petitioner was allowed to inspect the inquiry report and he was directed to make reply if any to the inquiry made by respondent no.1. No reply was filed by the petitioner. A plea of alternative remedy in view of Section 128 of U.P. Cooperative Societies Act was also raised in para 18 of the counter affidavit.

In the rejoinder affidavit the petitioner has reiterated the stand that neither copy of the statement of the of the witnesses examined on behalf of the Mill, nor copy of the inquiry report was supplied to him. The averment that the petitioner personally examined the record of the inquiry in federation office was denied, in para 14 of the rejoinder affidavit.

Heard Sri Shyam Narain, Advocate, learned counsel for the petitioner, none appeared on behalf of the respondents.

The case was heard on 13th October, 2006, but on that date it was pointed out to the learned counsel for the petitioner by the Court that the present writ petition is against the Cooperative Society, prima facie is not maintainable. The case was adjourned to 27th October, 2006 to enable the learned counsel for the petitioner to argue the case from this angle also.

Learned counsel for the petitioner submitted that the writ petition is maintainable and has relied upon a Division Bench Judgment of this Court, Rameshwar Dayal Shukla Vs. Deputy Registrar Cooperative Societies, 1982 LIC 1712. He further submitted that the Cooperative Society is an authority within the meaning of Article 12 of the Constitution of India. The other limb of the agreement is that copies of the statement of the witnesses were not supplied to the petitioner in spite of the demand and indisputably a copy of the inquiry report was also not supplied to the petitioner and as such the dismissal order has been passed in utter violation of principles of natural justice and is liable to be quashed. In support of the above contention reliance has been placed on Supreme Court judgment in the Managing Director U.P. Ware Housing Corporation and others Vs. Vijay Narain Bajpai 1980 SC 840 and Union of India Vs. Mohd. Ramzan Khan JT 1990 (4) SC 456.

The first point which falls for determination before this Court is about the maintainability of the present writ petition. In para 4 of the writ petition it is pleaded that respondent no. 2 is a registered Cooperative Society under Section 7 of the U.P. Cooperative Societies Act 1965 and under Section 9 it is a body corporate by the name under which it is registered having perpetual succession and a common seal and with power to hold property, to enter into contracts, institute and defend suit and other legal proceedings and to do all things necessary for the purposes for which it is constituted. Besides more than 90% of its shares are held by the Government of State of U.P. which completely controls and supervises its functions. Respondent no.2 is a federal authority under section 123 of the Act and the respondent no. 1 is the Managing Director/Chairman (Mills) of the respondent no. 1.

From the averments made in the writ petition it is clear that the respondent Cooperative Society is not a statutory body as it was not created under any Statute. Learned Counsel for the petitioner also during the course of argument admitted that there are no service rules governing the service conditions of the petitioner. He submitted that in view of Division Bench judgment of this Court in the case of Parmeshwar Dayal (supra) the Full Bench judgment (1982 All. C.J. 1) is distinguishable and the writ petition is maintainable.

I have given anxious consideration to the aforesaid submissions.

A Full Bench of this Court in the case of Radha Charan Sharma Vs. U.P. Cooperative Federation 1982 Allahabad Civil Journal (1) has held that an employee of U.P. Cooperative Federation Limited can not maintain a writ petition as the Federation is a private and non statutory body.

On a close reading of the judgment in Parmeshwar Dayal Shukla (supra) it is apparent that the said judgment is distinguishable and is not applicable to the facts of the present case. The Division Bench after noticing the above Full Bench judgment found that the federal authority constituted under Section 123 of the Act, who passed the impugned order was not registered under U.P. Cooperative Societies Act, but a body created under Section 123 (1) of the Act. In para 31 it has been further found that the management is entrusted not to the Committee of Management of the U.P. Cooperative Union Ltd but to the authority specified in the Notification issued by the Government. The Deputy Registrar who made the impugned order did not make it in relation to an employee of the U.P. Cooperative Union Limited but to an employee of the Federal Authority. The Deputy Registrar is also the Chairman of the Regional Committee. The Federal Authority is, therefore, an ''Authority' within the meaning of Art. 12 of the Constitution and is amenable to the jurisdiction of this Court under Art. 226 of the Constitution. On the above premises the decision given by the Full Bench was distinguished. Now coming to the facts of the case in hand it is apparent that the impugned order has not been passed by a Federal Authority but by the Managing Director/Chairman, who is not a creation of any statute. He being one of the officers/authorities of the Cooperative Societies is not amenable to the writ jurisdiction in view of the above Full Bench decision of this Court.

It is apt to note that the Full Bench has also relied upon a decision of the Supreme Court in the case of Cooperative Central Bank Limited Vs. Addl. Industrial Tribunal [1969] INSC 101; AIR 1970 SC 245. The Supreme Court in para 10 of the report has observed as follows :-

"We are unable to accept the submission that the bye laws of a cooperative society framed in pursuance of the provisions of the Act can be held to be law or have the force of law. It has no doubt been held that , if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however does not apply to bye laws of the nature that a cooperative society is empowered by the act to make. The bye laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye laws laying down condition of service of the employees of a society, the bye- laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye laws laying down the conditions of service are made and any person enters the employment of a society those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service. The bye- laws that can be framed by a society under the Act are similar in nature to the Articles of Association have never been held to have the force of law"

In view of above discussion the present writ petition is not maintainable against the impugned order. Even otherwise also I find no merit in the writ petition.

Sri Shyam Narain during the course of argument stated that there are no service rules and regulations applicable to the petitioner or the employees of respondent no. 2. He argued the case and challenged the impugned order basically on the law governing a government servant. The contention of the learned counsel for the petitioner is that no proper opportunity of hearing was given by respondent no. 1 to the petitioner. Elaborating the argument it was submitted that neither the copies of the statement of the witnesses recorded or the documents produced in the inquiry proceedings were supplied to the petitioner. He further submitted that before passing the termination order it was incumbent upon the respondents to supply a copy of the inquiry report. In support of the above argument he has placed reliance upon a decision of the Supreme Court in the case of Managing Director U.P. Warehousing Corporation and others Vs.. Vijay Narain Bajpai [1980] INSC 5; AIR 1980 SC 840 and Mohd. Ramzan Khan (supra). At this place it is appropriate to look into the appointment letter of the petitioner, a copy of which has been filed as Annexure-1 to the writ petition. In the said appointment letter it is clearly stipulated as condition no. 2 that " on satisfactory completion of probation his service would be terminable on one month's notice on either side or one months pay in lieu thereof". Further under condition no. 1it has been provided that during the initial or extended probation period his services would be terminable without notice and without assigning any reason. In the writ petition there is no mention that the petitioner was made permanent after completion of the probation period. However, that is not very much relevant. The fact remains that the appointment of the petitioner, as admitted by the learned counsel is not governed by any statute or regulation having statutory force. The nature of appointment of the petitioner on the post in question is contractual. In this view of the matter the petitioner can not enforce his service contract by means of the present writ petition as it would amount the specific performance of a contract of service, which is not permissible under law. The remedy of the petitioner is to claim damages for breach of the contract.

Now, the argument that principles of natural justice has not been followed, needs consideration. The whole gamut of the argument is that the procedure as prescribed under Article 311 of the Constitution of India governing the government servant was not followed in the present case before passing the impugned order. The submission is that no proper opportunity of hearing was afforded to the petitioner, now requires consideration. It may be noted here that no document has been referred in the charge sheet. The Mill has not sought to rely upon any document against the petitioner. The charges levelled against the petitioner are to the effect that he was unable to give proper direction to the Fire Brigade and was negligent in performing his duties in the fire accident, which took place on 15th June, 1990. The petitioner failed to train the employees connected with security in fire fighting drill and thus, the security officer could not open the valve of the fire hydrate at the relevant time. Fire hydrate was not examined from time to time to judge its working capacity. Due to negligence of the petitioner small fire turned into wild/big fire in the absence of availability of buckets filled up with water, sand etc. In reply, the aforesaid allegations have been denied by the petitioner. Significantly, it may be noted that the petitioner in reply did not demand any document for giving a proper reply. Sri D.K. Nag was appointed as inquiry officer and the petitioner has no grievance against him. The witnesses were examined by the Mill as well as by the petitioner during the course of inquiry proceedings, in his presence. The petitioner participated in the inquiry proceedings all though without any demur. In this view of the matter, it is difficult to hold that proper opportunity of hearing was not given to the petitioner. At this juncture, the Learned counsel for the petitioner submitted that even if there is no statutory regulation enforced in the absence of such regulation the inquiry should have been conducted in accordance with the rules of the natural justice.

Reliance was placed by the petitioner on Managing Director U.P. Warehousing Corporation Vs. Vijay Narain Bajpai [1980] INSC 5; AIR 1980 SC 840. It is misplaced one and the said decision is distinguishable on the facts. The said decision had proceeded on the footing that the U.P. State Warehousing Corporation is a statutory body, wholly controlled and managed by the Government. In this backdrop it was held that the Court would presume the existence of a duty on the part of the dismissing authority to observe the rules of the natural justice and to act in accordance with the spirit of Regulation 16. The said decision is not applicable, for the simple reason that the U.P. Cooperative Spinning Mills Federation Ltd. is not a statutory body and the petitioner employee, was not a public employee before his dismissal from the services as pointed out above. The respondent Cooperative Society is not a State within the meaning of Article 12 of the Construction of India. Moreover, the petitioner was not a public employee. The petitioner was appointed on a consolidated sum on the basis of contract on payment without following any statutory selection process. Moreover, I am of the view that proper opportunity of hearing was afforded to the petitioner before passing of the impugned order.

Now I take up the question of non supply of the inquiry officer's report to the petitioner. A copy of the inquiry officer's report was not supplied to the petitioner and the case of the respondents in the counter affidavit is that the petitioner was called in the office and was shown the said report. Be that as it may it may be noted that the law that a delinquent is entitled to get copy of the inquiry officer's report has been emerged, in view Article 311 of the Constitution of India. For the first time the Apex Court in the case of Mohd. Ramzan Khan (supra), held that a delinquent is entitled to get a copy of the report of the inquiry officer so as to enable him to make representation to the disciplinary authority against it. This law was made prospective and has been subject matter of consideration by the Constitution Bench in Managing Director ECIL Hyderabad Vs. B. Karunakar AIR 1994 SC 1074. It has been held that unless delinquent is able to establish that some prejudice has been caused to him by non supply of inquiry officer's report it would be a perversion of justice to permit the employee to resume the duty and to get all the consequential benefits. It means to rewarding the dishonest and guilty and thus to stretching the concept of justice to illogical and exasperating limits.

Relevant paragraph is reproduced below :-

"When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."

In the entire writ petition there is not even a whisper that any prejudice has been caused to the petitioner due to non supply of the inquiry report, even if for the sake of argument it is accepted that copy of the inquiry officer's report was not supplied to him. Apart from the above, the above law is applicable to a government servant and not to a person other than a Government servant. Indisputably the petitioner is not a government servant and is not governed by Article 311 of the Constitution of India. The law annunciated by the Apex Court in the case of Mohd. Ramzan khan and also in the case of Managing Director ECIR (supra), are the cases of government servants.

In Om Prakash Mann Vs. Director of Education (Basic), 2006 AIR SCW 4548, it has been held as follows :-

"10. By now it is well settled principle of law that doctrines of principle of natural justice are not embodied Rule. It cannot be applied in the strait jacket formula. To sustain the complaint of violation of the principle of natural justice one must establish that he has been prejudiced by none observance of principle of natural justice. As held by the High Court the appellant has not been able to show as to how he has been prejudiced by non furnishing of the copy of the enquiry report. The appellant has filed a detail appeal before Appellate Authority which was dismissed as noticed above. It is not his case that he has been deprived of making effective appeal for non furnishing of copy of enquiry report. He has participated in the enquiry proceedings without any demur. It is undisputed that the appellant has been afforded enough opportunity and he has participated throughout the enquiry proceedings, he has been heard and allowed to make submission before the enquiry Committee."

In this view of the matter the petitioner cannot derive any benefit from the ratio of Mohd. Ramzan Khan's case (supra).

No other point was pressed.

There is no merit in the writ petition. The writ petition is dismissed accordingly. No order as to costs.

Dt. November 15, 2006

KCS