The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18735 of 2021 Gopabandhu Sahu …. Petitioner Mr. Shakti Datta Tripathy, Advocate -versus- Registrar of Cooperative Societies, Odisha and others …. Opposite Parties Mr. Sanjay Rath, ASC CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 29.07.2024 Order No. 06. This matter is taken up through Hybrid Mode. 2. Challenging the order No.1210 dated 16.06.2021 under Annexure-11 passed by the Assistant Registrar of Cooperative Societies, Balangir Circle, Balangir, whereby the order of suspension issued by the President of Chudapali Primary Agriculture Co-op. Society Ltd. vide order dated 01.02.2021, the petitioner has approached this Court by way of this writ petition invoking provisions under Article 226/227 of the Constitution of India with the following prayer(s):- In the premises therefore, it is humbly prayed that, the “ Hon’ble Court may graciously be pleased to issue RULE NISI in the nature of writ of mandamus and/or any other appropriate writ/writs, direction/directions, order calling upon the opposite parties more particularly the Opposite Party No.2 to show cause as to why the order No.1210 dated 16.06.2021 under Annexure-11 shall not be quashed.; If the Opposite parties fail to show cause and/or show insufficient or false cause, make the said Rule Nisi absolute; Page 1 of 9 And pass such other further order/s as appear just; And allow this writ application with costs; And for which act of kindness, the petitioner as in duty bound shall remain ever pray.” 3. The petitioner joined in service as Secretary of opposite party-Chudapali Primary Agriculture Co-op. Society Ltd. pursuant to Order No.06 dated 25.06.2015 of the Committee constituted as contemplated under Section 28 read with Section 2(c) of the Odisha Cooperative Societies Act, 1962 (for brevity, “OCS Act”) on temporary basis in the Scale of Pay of Rs.3050-75-3950-80-4590/- with D.A. and other allowances as admissible and, as such, he is guided by the Guidelines dated 07.02.2011 issued by the Registrar of Cooperative Societies, Odisha, Bhubaneswar in exercise of the powers conferred under Section 33-A of the said Act. 4. An inquiry being conducted by one Sub-Assistant Registrar of Cooperative Societies of the Office of Assistant Registrar of Cooperative Societies, Balangir Circle, Balangir, in connection with news item published in newspaper “The Odia Express”, the Appointing Authority-Disciplinary Authority, the President of Chudapali PACS Ltd., in terms of Section 28 of the OCS Act read with aforesaid Guidelines had put the petitioner under suspension. 5. Said order of suspension dated 01.02.2021 being passed by the President of Chudapali PACS Ltd. in pursuance of the Order No.418 dated 28.01.2021 of the Assistant Registrar of Cooperative Societies, Balangir Circle, Balangir. Though Clause 21 of aforesaid Guidelines stipulates that “an employee may be placed under suspension from service by the disciplinary authority or the Page 2 of 9 Appellate Authority, as the case may be by an order in writing for any misconduct or where a case against him/her in respect of any criminal offence is under investigation or trial” and “draft charges in the proceeding shall be served on the employees so suspended within two months from the date of suspension. All efforts shall be made for completion of the inquiry against him within 90 days from the date of service of the draft charges”, since no step was taken, the petitioner had filed a representation on 19.05.2021 (Annexure- 6). Considering the said representation dated 19.05.2021, the President of the Society called upon the petitioner vide notice No.26 dated 24.05.2021 to file a reply and, accordingly, the petitioner submitted his reply on 26.05.2021. Thereafter, the Committee passed a Resolution No.2 dated 27.05.2021 for reinstatement of the petitioner in service being satisfied with such reply of the petitioner. Hence, the petitioner submitted his joining report. 6. The Assistant Registrar of Cooperative Societies, having no authority nor is he empowered under the OCS Act in order to nullify the decision of the Committee has invoked power suo motu on 16.06.2021 (Annexure-11) by restoring the order of suspension dated 01.02.2021. The petitioner has questioned such order of the Assistant Registrar of Cooperative Societies, Balangir Circle, Balangir under Annexure-11 as illegal, whimsical, without authority of law and tainted. 7. A counter affidavit has been filed on behalf of opposite party nos.2, 3 & 5 justifying the exercise of power by the Assistant Registrar of Cooperative Societies while passing order dated 16.06.2021. It is stated that the said Authority was within his Page 3 of 9 authority and jurisdiction to suspend an employee as per provisions contained in Section 28(1)(xv) of the OCS Act. In this respect, it has been asserted that vide order dated 21.09.1999 in exercise of powers conferred by Section 3(2) the Government of Odisha in Cooperation Department delegated power under Section 28 to the Assistant Registrar of Cooperative Societies (In-charge of Circles). ` 8. It is submitted by the opposite parties that the order of the President to reinstate the petitioner in service is in contravention of Clause 21(a) of the Guidelines issued by the Registrar of Cooperative Societies, Odisha, Bhubaneswar in Letter Memo No.2858—XX-3/03(pt.)/Bank-10, dated 07.02.2011, because of the fact that a Police investigation has been continuing against the petitioner. It is, therefore, submitted that, at this stage, if the petitioner is reinstated, the process of investigation would be affected. 9.
Legal Reasoning
Heard Sri Shakti Datta Tripathy, learned counsel appearing for the petitioner and Sri Sanjay Rath, learned Additional Standing Counsel for the opposite parties. 10. The short point which draws attention of this Court for adjudication is whether the Assistant Registrar of Cooperative Socieites, Balangir Circle, Balangir is competent to invoke power suo motu to direct suspension of the petitioner and issue the following order: “OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES, BALANGIR CIRCLE, BALANGIR No.1210/ Dt.16/6/2021 To The Secretary (I/C), Chudapali PACS Ltd. Page 4 of 9 Sub:- Sir, Regarding re-instatement of Secretary, Chudapali PACS by the Committee of Management. After examination of documents it is revealed that the decision passed by the Committee of Management of Chudapali PACS vide its resolution No.02 dtd.27.05.2021 is violating point No.21 A of the guideline issued by the RCS(O) Bhubaneswar vide his Memo No.2858 dated 07.02.2011 which reads as follows- “An emplyoyee may be placed under suspension from service by the disciplinary authority or the Appellate Authority as the case may be by an order in writing for any misconduct or where a case against him/her in respect of any criminal offences is under investigation or trial.” From the above it is evident that the resolution passed by the committee of management of Chudapali PACS has no legal leg to stand. So the orders of suspension issued by the president of the Committee of Management of Chudpali PACS vide his Letter No.13 dtd.01.02.2021 stands as it was before. Yours faithfully SD/- Asst. Registrar of C.S., Balangir Circle, Balangir” 11. The following provisions of the OCS Act are extracted hereunder so far as required for the present purpose: “28. Society to have a Committee.— The management of a Society shall vest in a Committee constituted in accordance with this Act, Rules and Bye-laws, and the Committee so constituted shall exercise such powers and perform such duties as may be necessary or expedient for the purpose of carrying out its functions under this Act which shall include— the power to (a) *** Page 5 of 9 (viii) to create posts, make service conditions, leave concessions, fixation and revision of pay and allowances of the employees of Co-operative Societies with the previous approval of the Registrar and shall have power to appoint officers and other staffs to conduct the business of the Society and determine inter alia their duties, disciplinary matters, subject to provisions in this regard, in the Act, Rules and the Bye-laws] *** (xv) decide its own internal control system such as internal inspection, delegation of authority, safe custody of valuables, fraud prevention measures depending upon its scale of business and appoint auditors for audit of the accounts of the Co-operative Credit Society and determine the payment to be made for such audit: Provided that the Committee of a Co-operative Credit Society while taking action under sub-caluses (vii) and (viii) shall give due regard to the guidelines issued by the Registrar under Sub- section (2) of Section 33-A.” The aforesaid provisions do not authorise or vest power on 12. any authority to delegate any power under Section 28. It is the Committee which is competent to take decision with respect to subject-matter enumerated therein. Therefore, it is not understood as to invocation of power under Section 28 by the Assistant Registrar of Co-operative Societies in order to suspend the petitioner. 13. By virtue of Clause 21 of the Guidelines, the Disciplinary Authority or the Appellate Authority, as the case may be, has the power to suspend an employee by an order in writing for any misconduct or where a case against the employee in respect of any criminal offence is under investigation or trial. It also stipulated in the said Clause that the inquiry is required to be concluded within Page 6 of 9 90 days from the date of service of draft charge. As it appears the matter has been lingering since 2021 on the basis of a news item published in Odia newspaper and in the meantime more than three years have been elapsed. 14. Mr. Sanjay Rath, learned Additional Standing Counsel appearing for the opposite parties pointed out that in view of Clause 23 of the Guidelines, the Assistant Registrar of Cooperative Societies, being conferred with the powers of the Appellate Authority, is competent to pass orders of suspension. Said Clause 23 is quoted hereunder for ready reference: “23. Appeals.— An employee may appeal against an order imposing upon him any of the penalties specified in rule 18 to the authority in the scheduled given below: Sl. No. Description of posts Penalties which may be imposed 1 2 Grade-III Minor Major Grade-I & II Minor Major Authorities competent to impose penalties Secretary Managing Committee President Managing Committee Appellate Authority President Concerned Circle ARCS Managing Committee Concerned Circle ARCS ” 15. Perusal of said Clause 23, it is unambiguous that the petitioner, Grade-I employee, could be awarded punishment by the Disciplinary Authority under two categories, i.e., (1) Minor and (2) Major. In the event of Minor punishment, the Managing Committee is the Appellate Authority and in case of Major Punishment, the Page 7 of 9 Assistant Registrar of Cooperative Societies is the Appellate Authority. 16. Fact on record reveals that after being satisfied with the explanation of the petitioner and acting on the inquiry report, the Committee in Resolution dated 27.05.2021 has absolved the petitioner from charges and took a decision to reinstate by recalling the order of suspension, which it seems such an action in conformity with powers conferred on the Committee under Section 28. It needs to be emphasised that the Assistant Registrar of Cooperative Societies having no authority either under Section 28 or Clause 21 or Clause 23 to exercise power to suspend an employee suo motu, could not have passed order on 16.06.2021. 17. This Court finds no substance in the arguments on learned Additional Standing Counsel appearing for the opposite parties that in view of Clause 23 of the Guidelines the ARCS has the authority to issue orders of suspension (Annexure-11). In the first place, the Committee having exercised power under Section 28 read with Clause 21 of the Guidelines found no charge established. So there was no occasion for the petitioner to file appeal. In the second place, the Assistant Registrar of Cooperative Societies could not have assumed his power on the hypothesis that the petitioner would suffer major penalty. As per Clause 23 of the Guidelines, in the event, had the competent Authority imposed major penalty, the Assistant Registrar Cooperative Societies would have sprung into action as the Appellate Authority. However, in the present case, neither minor penalty nor major penalty has been imposed on the petitioner. Page 8 of 9 18. In such view of the matter, the Assistant Registrar of Cooperative Societies, having exercised power without authority of law and having exceeded his jurisdiction in view of express provisions contained under Section 28 read with Section 3 of the OCS Act conferring power on the Committee and in terms of Clause 21 of the Guidelines power of suspension being conferred on the Disciplinary Authority, the order dated 16.06.2021 vide Annexure-11 is a nullity and accordingly, the same is liable to be quashed. This Court, therefore, is inclined to quash the said order.
Decision
With the above, the writ petition succeeds and stands disposed of. Laxmikant (M.S. Raman) Judge Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Jul-2024 18:36:58 Page 9 of 9