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PETITIONER: THE U.P. COOPERATIVE FEDERATION LTD.

       Vs.

RESPONDENT: SHRI RAM SINGH YADAV & ORS.

DATE OF JUDGMENT:       01/12/1997

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:              THE 1ST DAY OF THE DECEMBER, 1997 Present:                Hon’ble Mrs.Justice Sujata V.Manohar                Hon’ble Mr.Justice D.P.Wadhwa Mrs. M.Qamaruddin,  J.A.Warsi, Shahid Hussain, Advs. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: D.P. Wadhwa, J.      This appeal  is directed  against thee  judgment  dated July 3,  1989 of  the Division  Bench of  the High  Court of Judicature at  Allahabad (Lucknow  Bench) allowing  the writ petition of  the respondent.   The  respondent  who  was  an employee with  the appellant  challenged the order dated May 25, 1978  of the  Joint  services  on  the  ground  that  he abandoned his  services from  July 21,  1977  and  that  the respondent would  not be entitled to any pay and allowances. the  order  terminating  the  services  of  the  respondent, however, says  that "as  such he  is absent  since 21  July, 1997, and  his services  are terminated  for the  reason  of being absconded in this way".  By the impugned judgment, the High Court  set aside  the order  dated May  25, 1978 on the ground  that  no  disciplinary  proceedings  were  initiated against the  respondent and his services could not have been terminated without  there being an enquiry officer appointed and no  enquiry  ever  having  been  conducted  against  the appellant on the alleged ground of his abandoning his job.      The appellant  is  a  co-operative  society  registered under the  U.P. Co-operative  Societies Act, 1965 (for short ’the act).   It is, therefore, governed by the provisions of that Act  and the  Rules framed  thereunder.  Section 122 of the Act  prescribes constitution  of an Authority to control employees of  co-operative societies.   This  Section we may reproduce 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

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    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  a 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."      The  State  Government  framed  the  U.P.  Co-operative Societies Employees’  Service Regulations,  1975 which  were published in  the U.P. Gazette dated 6th January, 1976.  The Regulations were  applicable with  effect from  the date  of their publication  in the  U.P. Gazette.    Clause  (xi)  of Regulation 2  defines ’employee’  which means  a  person  in whole-time service  of a  co-operative society, but does not include a  casual worker  employed  of  a  society.    Under Regulation 5  recruitment for  all  appointments  in  a  co- operative society  shall be  made through  the  Board  which means the  U.P. Co-operative  Institutional  Service  Board. The constitution  and  the  functions  of  this  Board  may, however, be  not relevant  at this stage as the stage as the respondent was  appointed on January 22, 1973 as a Helper, a Class IV  employee, temporarily  by  the  Secretary  of  the appellant, viz.,  prior to  the coming  into  force  of  the Regulations.  Under Regulation 102 a co-operative society is empowered to  frame service  rules fro  its employees which, however,  are  to  be  subject  to  the  provisions  of  the Regulations.     The  Regulations,  however,  apply  to  the existing employees  of a  co-operative society which were on its roll  on the  date the  Regulations took  effect.  Under Regulation 103,  the Regulations shall be deemed inoperative to  the  extent  they  are  inconsistent  with  any  of  the provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur  Vanijya   Adhisthan   Adhiniyam,   1962,      Workmen’s Compensation Act,  1923 and  any other  labour laws  for the time being  in force, Regulations 102 and 103 may be set out as under:      "102. (i) Subject to the provisions      of   these   regulations,   a   co-      operative  society   shall   within      three  months   from  the  date  of      coming   into    force   of   these      regulations (unless an extension of      time is  allowed by  the  Board  in      writing) frame  service  rules  for      its employees.      (ii) The service rules framed under      sub-section (i)  shall be submitted      to the Board for approval and shall

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    be   operative   only   after   the      approval.      (iii)   Notwithstanding,   anything      contained in  these Regulations the      existing employees  shall  have  an      option to  continue to  be governed      by the  existing service  rules, if      any, in the society only in respect      opt the  new service rules on these      matters.      Explanations.-    (1)    Provisions      relating  to  pay,  increments  and      allowances (other  than  travelling      allowance),              probation,      confirmation, retirement, provident      fund, and gratuity, shall be deemed      as included in the term "emoluments      and benefits".      (2) In case of any doubt or dispute      in interpretation in respect of the      matter  mentioned   in  (1)  above,      reference  shall  be  made  to  the      Board  whose   decision  shall   be      final.      (c) Existing  service  rules  means      authentic service  rules framed  by      and  with   the  approval   of  the      competent authority.      103.     The  provisions  of  these      regulations to  the extent of their      inconsistency,  with   any  of  the      provisions   of    the   Industrial      Disputes Act, 1947, U.P. Dookan Aur      Vanijya Adhishthan Adhiniyam, 1962,      Workmen’s  Compensation  Act,  1923      and any  other labour  laws for the      time being the force, if applicable      to  any   co-operative  society  or      class  of  co-operative  societies,      shall be deemed to be inoperative."      Regulation 19  provides for  termination of services of an employee.   This  Regulation, in  relevant  part,  is  as under:      "19. Termination.-  Services of  an      employee shall be terminable:-      (a)  in   case   of   a   temporary      employee, on  one month’s notice in      writing on  either side, or in lieu      thereof by  payment of  one month’s      salary by  the  party  which  gives      notice:      Provided that  in  case  of  direct      appointments made  for  a  specific      period, it  shall not  be necessary      to give  any notice  or any  pay in      lieu thereof.      Explanation.-   ’Specific   period’      means stated  period of  less  than      six months.      (b)  by  three  months’  notice  in      writing on either side in case of a      confirmed employee.      Explanation.-(1) A  notice given by      employee  under   Regulation  No.19      shall be  deemed to  be proper only

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    if he  remains on  duty during  the      period of the notice:      Provided that  the employee  may be      allowed on  request to  avail  such      portion of  earned leave  as may be      due to  him which shall however not      exceed the notice period."      Under Regulation 33, the salary accruing to an employee ceases when  the employee ceases to be in the service of the co-operative society.    In  case  of  an  employee  who  is dismissed or  removed from  service or  dies  while  in  the service of  the co-operative  society the salary shall cease from the  date of  his dismissal,  removal or  death, as the case may  be.   Chapter  VII  of  the  Regulations  contains provisions  for   penalties,  disciplinary  proceedings  and appeals.   Under Regulation  84, an  employee can be removed from service  and he  is to be provided with the copy of the order of  punishment.   The penalty  of removal from service cannot  be   imposed  without   recourse   to   disciplinary proceedings.   An authority  other  than  by  which  he  was appointed unless  the appointing  authority has  made  prior delegation  of  such  authority  to  such  other  person  or authority in  writing.   Regulation 85 provides in detail as to how  disciplinary proceedings  are to  be conducted.  Any order of  removal or dismissal from the service or reduction in rank  or grade  held substantively by the employee cannot be passed  except with   the  prior concurrence of the Board (Regulation  87).   The  order   imposing  penalty  is  also appealable under the Regulations.      Our attention  has been  drawn to  the Service Rules of the appellant  which are  stated to be in force from July 1, 1956 and  particularly to  Rules 17 and 19 thereof which are reproduced as under:      "17.  If   any   employee   behaves      carelessly       and        commits      irregularities or  his actions  are      prejudicial to the interests of the      Federation  an   enquiry   may   be      instituted.   The employee  will be      called upon  to explain the charges      that   may   be   to   submit   his      explanation   to    the   enquiring      officer  to   be  deputed   by  the      Secretary.   Such an  employee will      also be  given  opportunity  to  be      heard  in   person  if   he  is  so      desires.    If  no  explanation  is      received   or    the    explanation      submitted  is  unsatisfactory,  the      punishment that  is proposed  to be      given to  him will  be communicated      to   cause    why   the    proposed      punishment may not be given to him.      If  no   further   explanation   is      received  or   the  explanation  is      unsatisfactory,    the    Executive      Committee or  the Secretary  as the      case  may   be,  will   award   the      punishment to  him of the Executive      Committee  or   the  Secretary   is      satisfied that  the  punishment  is      deserved.      18.    Notwithstanding     anything      contained  in   Rule  17,   if  any      employee   is    guilty   of    any

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    misconduct  as  defined  herein  he      shall be  liable  to  be  dismissed      without notice  or any compensation      in lieu  of notice.   The following      acts and omissions shall be treated      as misconduct:      (a)   Wilful   insubordination   or      disobedience, whether  alone or  in      combination  with  others,  to  any      lawful and  reasonable order issued      or authorised by the authorities.      (b) Theft,  fraud, or dishonesty in      connection  with  the  business  or      property of P.C.F.      (c) Wilful  damage to  or  loss  of      goods or property of P.C.F.      (d) Taking  bribes or  any  illegal      gratification.      (e) Habitual absence without leave,      or absence  without leave, for more      than 15 days in one stretch.      (f) While  absent from duty with or      without  leave,   failure   without      sufficient cause  to rejoin  duties      within  a   reasonable  time   when      specifically called  upon to  do so      by a competent authority.      (g) Habitual  breach of  any law or      rule applicable to P.C.F.      (h) Riotous or disorderly behaviour      during  working   hours,   or   any      behaviour subversive of discipline.      In awarding  punishment under  this      Rule the gravity of the misconduct,      the   previous    record   of   the      employees,    and     any     other      extenuating     or      aggravating      circumstances that  may exist shall      be taken into account."      It will be thus seen that under Rule 18, an employee is guilty of  misconduct if  he is  absent from  duty  with  or without leave  or he  failed, without  sufficient cause,  to rejoin duties  within a  reasonable time  when  specifically called upon  to do  so by  a competent authority.  In such a case the  employee is  liable to be dismissed without notice or any  compensation in lieu of notice.  Indeed, in awarding punishment under  Rule 18,  the gravity  of misconduct,  the previous record  of the employee or any other extenuating or aggravating circumstances that may exist shall be taken into account.   If we  rely on  this submission  of the appellant that in  the present  case action  has been taken under Rule 18, it  would appear  to us that the respondent has not been removed from service or his services have not bee terminated but he  has been dismissed.  In that case it will be clearly in violation  of Regulations 84.  It is not necessary for us to examine  all the Service Rules of the appellant but Rules 17 and  18 cannot stand in face of Regulations 84 and 85 and in view  of Regulation 102. That, therefore, does not appear to be a correct submission in the circumstances of the case.      As  noticed  above,  the  respondent  was  employed  as Helper, a  class-IV post,  by the Secretary of the appellant on a consolidated salary of Rs. 125/- per month on temporary basis and  his services  were terminated  on May  25,  1978. During the  period of  his  employment  was  transferred  to Unnao, Gorakhpur and then finally to Lucknow as and when the

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need arose on completion of any particular project which was being handled  by the  appellant.   On November  1, 1975, an order was issued by the Secretary of the appellant to absorb services of  Mates including that of the respondent who were working under  A.R.C. in  the cloth  scheme which  had  been competed.   It was  mentioned in  the order that if any Mate was found  unsuitable, the  secretary should be informed and further that  if  in  any  district  some  people  had  been appointed on  daily wages  then those appointments should be cancelled and  the services of Mates should be used.  It was also mentioned  that the  appointment  should,  however,  be totally temporary  and could  be terminated any time without any notice.  From November 1, 1976, the respondent was given a regular scale of pay in the pay-scale of Rs. 165-215/-. It appears from the record, however, that there were persistent complaints against the respondent about his working.  He was accused   of    inefficiency,    indiscipline    and    even insubordination.   So much  so even a memo was issued to him but no  action was  taken against  the respondent.   He was, however, transferred  from one  office  to  another  of  the appellant but  all at  Lucknow.   Lastly the  respondent was transferred from  PCF Lucknow  to PCF  Press.   This was  by order dated  July 14,  1997.   By this order three employees were transferred and the order reads as under: "The  following   assistants/Chaukidar  are  transferred  at places written  relieved from their place of work may assume their work at New Place with immediate effect. Name of the     Present place      New place employee M/s    of work            of work 1. Sh Ram Singh  PCF Lucknow      PCF Press     Yadav 2. Rahim Bun     PCF Lucknow      PCF Press 3. Vishun Kumar  PCF Lucknow      Head office Sd/-N.P. Aggarwal Secretary Office U.P. Co-operative Federation Limited 6, Campar Road, Lucknow. Sd/-PCF/1/674/85 dated July 14, 1997 Copy to the following for information and necessary action. 1.   Concerned Employee 2.   Dist. Superintendent PCF Lucknow 3.   Superintendent Coal Dump, Lucknow 4.   Regional Officer, Lucknow 5.   Deputy Managing Director/Account/Press 6.   The Accounts Officer (General) 7.   Pay Bill Assistant 8.   Superintendent (Nazarat)"      Respondent admits  that he  was so transferred and also the fact  that he  did not  join new  posting.    While  the appellant complains  that the  respondent abandoned his work and did not report for duty when transferred on May 30, 1977 to Regional  Office at  Lucknow and  then ultimately  to PCF Press on  July 14,  1977, the  respondent says that no order was served  upon him  when he  was transferred  to  Regional Office on May 30, 1977.  He nevertheless admits his transfer to PCF  Press and  his non  joining there.   But his case is that when he was transferred on May 30, 1977 he was reverted from the  post of assistant, on which he was officiating, to that  of  Chaukidar.    His  grievance  is  that  though  he qualified Intermediate  Science Examination and was entitled to be considered fro appointment to the post of assistant in the appellant as and when vacancies for such posts arose out he was  not so  considered in  violation of  Regulation  27. Under this  Regulation out  of the  total  vacancies  to  be

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provided for  50, per  cent shall,  as far  as possible,  be filled up  by promotion from amongst the eligible be made on the basis of seniority-cum-merit.  Respondent has also based his claim  on two  communications where  he was described as assistant.   One such  communication is dated March 23, 1976 by  the  District  Superintendent  PCF  where  he  has  been addressed as  "Sri Ram  Singh Yadav (Assistant) PCF Lucknow" and ordering  him to  keep entire record pertaining to wheat purchases for planning year 1976-77 and conducting necessary proceedings  in  respect  thereof.    The  other        such communication also  the Distt.  Superintendent, PCF, Lucknow is dated  April 6, 1976.  This communication is addressed to as many as five employees and the respondent is described as Assistant and  detail of  his work  is "to help Ram in wheat delivery".   The communication  dated April  6, 1976  is  an order which starts as under:      "Under planning  for purchasing  of      wheat  in   Rabi,  year  1976,  the      employees in  District  Office  are      posted in  duty accordingly.   This      work will  be additional  to  their      regular job  and job  of purchasing      the   wheat   will   be   done   in      priority."      There is,  however, no order by the competent authority by which  it could  be said  the respondent  was promoted as Assistant. As  a matter  of fact  it  is  the  case  of  the respondent himself  that he was wrongly reverted and he also complains that  he was  wrongly ignored for promotion to the post of  Assistant which  promotion was  denied to him.  For not joining  the duty the respondent appears to take shelter on his plea that he could not have been reverted to the post of Assistant  and he  would not  join  the  new  posting  as Chaukidar.   Letter terminating  the services  describes the respondent as  Chaukidar.  It is difficult to understand the plea raised  by the  respondent that  he was entitled to the post of  Assistant, or  he was  justified in not joining his new posting  unless he  was given posting as Assistant.  His not joining  the posting  as Assistant.  His not joining the posting on  that account  does not appear to be based on any of his legal rights under the Regulations.      When leave  was granted on special leave petition filed by the  appellant in his case, on the interim application it was ordered  that there  would be  stay of  payment of  back wages to  the respondent  until further  orders.   Record of this appeal  shows that  there has been controversy again if after the impugned judgment of the High Court the respondent ever joined  his service.   On the other hand, it was stated by the  appellant that  the respondent  had moved  the  High Court for taking contempt proceedings against the officer of the appellant  for not  allowing him to join the duty.  This Court  recorded  that  the  respondent  it  seemed  was  not reporting for  duty whereas  on the  other hand  he took out contempt proceedings  in the  High Court.   The  Court noted that the  registered letters  dated 2.3.90  and 25.9.90 were sent to the respondent to join duty out he did not appear to have responded  to the  same and  instead to put pressure he had taken  out contempt proceedings in the High Court.  This Court expressed  unhappiness about  the manner  in which the respondent was  proceeding with the matter.  It was directed that in  order to  give a  last chance  to the respondent he should report for duty latest by 15th January, 1994, failing which, the  Court would  be constrained to infer that he was not interested  in the  job.   The matter did not end there. The appellant  again approached  this Court complaining that

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though in pursuance of earlier order the respondent did join the duty  but he  again absented.  Be that as it may, we are not concerned  with the  conduct of  the respondent  or  any action which  the appellant  could take  against him for his alleged misconduct  during the  pendency of this appeal.  It would, however,  appear that because of the pendency of this appeal the  appellant chose  not to  take any action against the respondent.   It  is always  open to  the  appellant  to initiate disciplinary proceedings against the respondent for his remaining  absent unauthorisedly  or  not  joining  duty during the  pendency of  this  appeal  if  circumstances  so warrant.      It could  not be  denied  that  the  respondent  is  an employee within  the meaning  of clause (xi) of Regulation 2 of the  Regulations.  He is in the whole-time service of the appellant.   He is  not a  casual worker  employed on  daily wages or a person in part-time service of the appellant.  It is  not   material  for  us  to  examine  therefore  if  the respondent is  temporary or has been substantively appointed to the post he is holding.  The impugned order is in fact an order of  removal of the respondent from service.  It is not a termination  in the  strict sense  within the  meaning  of Regulation 19  as the  requirements of  that Regulation have not been  met and that is also not the case of the appellant that the  action was under Regulation 19.  That being so the impugned order  of termination  is in  fact removal  of  the respondent from  the service  and procedure as prescribed in Regulations 84  and 85  had therefore  to be  met.  That has admittedly not  been  done.  There  is  no  chargesheet,  no enquiry officer  and no  enquiry  proceeding.    Regulations prescribe detail  procedure for  conduct of the disciplinary proceedings.   Provisions of  Regulations  84  and  85  have certainly been  violated to the prejudice of the respondent. We therefore  uphold the  order of  the High  Court  setting aside the  termination of service of the respondent by order dated May  25, 1978 to the extent that the respondent has to be reinstated in the service though it does not preclude the appellant from holding an enquiry or passing proper order in accordance with law.  However, since on the admission of the respondent himself  that he has not worked from July 3, 1977 till the  impugned judgment  dated July  3, 1989 of the High Court the  respondent would  not be  entitled to any pay and allowances for  that period.  This is so as respondent is at fault in  not joining  his new  posting  without  any  valid reason.   Though ultimately  if there  is no  enquiry or the respondent  is  exonerated  this  period  shall  be  counted towards his pensionary and other benefits.      The  appeal  is  thus  partly  allowed  to  the  extent mentioned above.   There  will however,  be no  order as  to costs.