The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14190 of 2024 Jiten Kumar Pradhan …. Petitioner Mr. S.D. Tripathy, Advocate -Versus- Assistant Registrar of Cooperative Societies, Banki and others …. Opposite Parties Mr. N.K. Praharaj, AGA Mr. K.C. Sarangi, Advocate for O.P. Nos.2, 3 & 4 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:24.12.2024 1. Instant writ petition is filed by the petitioner for a direction to the opposite parties and in particular, opposite party Nos.1 and 2 to accept his joining report dated 24th May, 2024 pursuant to Annexure-8 on the grounds stated therein. 2. Necessary direction is sought for to allow the petitioner to join as the Secretary of the Society in question under the administrative control of opposite party No.1. According to the petitioner, he was appointed as the Assistant Secretary of the Society, namely, Pandalam Service Cooperative Society Limited situate within the limits of Banki Circle as per order dated 30th October, 2019 of opposite party No.2, consequent upon a decision of the Managing Committee exercising powers under Section 28 of the Odisha Cooperative Societies Act, 1962 (hereinafter referred to as ‘the OCS Act’) and was issued with an order of appointment as at Annexure-1, whereafter, in such W.P.(C) No.14190 of 2024 Page 1 of 12 capacity, he worked and the service record has been unblemished. It is pleaded that opposite party No.2 accepted the joining report i.e. Annexure-2 from the petitioner and by the time of his joining in service, opposite party No.3 had been removed by the Management headed by opposite party No.2 vide order dated 25th October, 2019 as at Annexure-3 due to pendency of criminal cases against the latter for misappropriation of fund, later to which, Service Dispute Case No.30 of 2019 was filed but the same was withdrawn unconditionally and thereafter, reinstatement was allowed in collusion with the Administrator of the Society by an order dated 24th August, 2020 and the same was set aside in Dispute Case No.123 of 2020 filed by one of the members of the Society by order dated 2nd March, 2024 of opposite party No.3 as per Annexure-4. It is further pleaded that opposite party No.1, in order to nullify Annexure-4, reinstated opposite party No.3 by order under Annexure-5, which is beyond his competence and authority and such decision is under challenge in W.P.(C) No.7711 of 2024. Later to the order as per Annexure-5 and despite an interim direction in W.P.(C) No.7711 of 2024, opposite party No.1, even after being duly communicated about the same, permitted opposite party No.3 to continue in service, as a result of which, D-CONTCT No.20818 of 2024 was filed and only after initiation of the contempt proceeding, did opposite party No.1 intimate opposite party No.2 to carry out the order and not to allow the said opposite party to function as the Secretary of the Society till disposal of the matter pending before this Court by letter dated 21st May, 2024 (Annexure-8). It is claimed that after the aforesaid events, the petitioner requested opposite party No.2 to accept his joining report on 24th May, 2024 and to allow him to function as the Secretary, which was not entertained, even though duly communicated to opposite party No.1. W.P.(C) No.14190 of 2024 Page 2 of 12 3. Opposite party Nos.1 and 6 filed the counter and pleaded that the appointment of the petitioner as the Secretary of the Society is illegal and in violation of Rule(s) 5, 6 and 8 of the PACS Staff Service Rules, 2011 (shortly as ‘the Rules’) referred to as the guidelines issued by opposite party No.5 dated 7th February, 2011 as at Annexure-A/6 of the reply affidavit. It is pleaded on record that appointment of the petitioner through direct recruitment not to be in consonance with Rule 5 of the Rules, inasmuch as, such appointment has taken place in absence of the Member (Convener), who is a Government representative and therefore, opposite party No.1 informed the President of the Society to revoke the same with an intimation by letter dated 18th November, 2019 (Annexure-B/6). The claim is that the appointment as per the Rules shall have to be by a Committee as per Rule 5 thereof duly approved by the Managing Committee, which is the authority for all employees for the purpose of appointment and since the procedure has not been followed, the direct recruitment of the petitioner as the Assistant Secretary of the Society shall have to be treated as null and void. As per the pleading, a temporary arrangement has been made disengaging opposite party No.3 vide Annexure-C/6 and was followed by
Legal Reasoning
of this Court in W.P.(C) No.7711 of 2024, the petitioner expected acceptance of joining report to discharge the duty as the Secretary of the Society for being already appointed earlier as its Assistant Secretary and in view of the temporary arrangement having been allowed. It has been alleged that the joining report of the petitioner was accepted after the appointment order i.e. Annexure-1 ignoring the statutory provisions of the OCS Act and rules framed thereunder. The remuneration allowed in favour of the petitioner was directed to be recovered by a letter i.e. Annexure-F/6 and it was in the year 2020. It is not clear as to if W.P.(C) No.14190 of 2024 Page 9 of 12 the petitioner, after June, 2020 or subsequent to Annexure-B/6 was allowed to perform and discharge the duty as the Secretary of the Society. If the order of appointment has been held to be illegal with the necessary consequences followed, subsequent to Annexures-B/6 and F/6, any such engagement with the acceptance of joining report in such capacity so as to enable him to remain in the charge of Secretary of the Society cannot be allowed. 12. There appears to be an intimation to the Society as per Annexure-B/6 for revocation of the decision towards the appointment of the petitioner. Even, vide Annexure-F/6, the then Secretary in-charge of the Society was directed by opposite party No.1 to deposit an amount of Rs. 64,000/- in favour of the Society disbursed to the petitioner as his remuneration and to report compliance otherwise to be recovered from him. The audit report as at Annexure-G/6 is of the year 2017-18. To show engagement and continuation of Mr. Manoranjan Ghadei as the Assistant Secretary of the Society initially on temporary contingent basis till recently, Annexure-G/6 is referred to. It is claimed with a pleading on record that the services of Mr. Manoranjan Ghadei was subsequently regularized with the approval order of the then Assistant Secretary of the Society by order No.387 dated 29th March, 2022. Nothing is brought on record by the petitioner to show and satisfy the Court that since November, 2019, he continued to discharge the duty without break as against the claim that the services of Mr. Manoranjan Ghadei was regularized in 2022, while continuing on temporary basis with a reference to Annexure-G/6. No scrap of paper is produced to convince the Court that the petitioner had been discharging the duty as the Assistant Secretary of the Society at least after June. 2020, when, it is suggested that he was paid the remuneration in absence of any such post in place and for his appointment being illegal. W.P.(C) No.14190 of 2024 Page 10 of 12 13. With the available materials on record, it could lead to a conclusion that the petitioner was not allowed to continue further probably after June, 2020 upon receiving Annexure-F/6. According to the Court, it is well within the dominion of the Assistant Registrar, CS of a Circle to intimate the President of the Society to ensure appointments following due procedure prescribed in the Rules. As it appears, when the appointment of the petitioner was made in absence of the Government representative from the Circle being present as the Member in accordance with the Rules, while (Convener) required considering direct recruitment, the Assistant Registrar, CS can be said to be justified to instruct and intimate the President of the Society to revoke the same. The antecedents of opposite party No.3 and of Mr. Manoranjan Ghadei, for that matter, are of no significance, rather, a case is to be made out, while seeking a direction for acceptance of joining report, as the petitioner is to stand on his own legs, which again depends on the continuity of service upon his such appointment in 2019. In any case, Mr. Manoranjan Ghadei, Assistant Secretary is no more the in-charge Secretary in view of Annexure-E/6. The petitioner, that apart, cannot straightaway demand to join as the Secretary of the Society, which is a promotional post as per the Rules and at best, could claim to remain in-charge, only if he is found to be in service as the Assistant Secretary. In absence of any proof being in service continuing since 2019, as the Attendance Register and Acquittance Roll allegedly did not reveal so, it would not be in any way wrong to reach at a conclusion that petitioner was not allowed to serve as the Assistant Secretary of the Society from 2019-20 onwards, whereas, Mr. Manoranjan Ghadei was continued to be engaged with the regularization of his services in 2022. Without elaborating further, at last, it is concluded by the Court that against the aforesaid backdrop, the petitioner’s joining W.P.(C) No.14190 of 2024 Page 11 of 12 report could not have been accepted irrespective of pendency of W.P.(C) No.7711 of 2024, which is rather inconsequential. 14. Hence, it is ordered. 15. In the result, the writ petition stands dismissed, however, in
Arguments
Annexure-D/6 to engage one Mr. Manoranjan Ghadei, working as the Assistant Secretary and was allowed to remain in-charge of the Secretary of the Society. Due to the administrative reason stated, it is further pleaded that thereafter, the Secretary of Puincha SCS Limited was directed to work as the Secretary(I/C) of the Society in addition to his own duty by order dated 21st June, 2024 as per Annexure-E/6. Since, the petitioner was appointed illegally, as according to opposite party Nos.1 and 6 and was not continued as the employee of the Society and as the then Secretary (I/C) of the Society disbursed an amount of Rs.64,000/- towards his remuneration for a period between November, 2019 W.P.(C) No.14190 of 2024 Page 3 of 12 and June, 2020, opposite party No.1 directed the recovery of the same by letter dated 19th October, 2020 (Annexure-F/6), whereas, Mr. Manoranjan Ghadei was continuing as the Assistant Secretary at the relevant point of time so revealed from the staff position annexed to the audit report as at Annexure-G/6 and supported by the order dated 29th March, 2022 (Annexure-H/6). With the above facts, it has been the pleading that the appointment of the petitioner was accomplished illegally by the Management of the Society in convenience with the then Secretary (I/C), namely, Mr. Dharanidhar Mohanty without following the guidelines issued in that regard and therefore, opposite party No.1 advised to cancel the order of appointment issued in his favour, hence, therefore, he has no right to demand acceptance of his joining report. 4. Opposite party Nos.2 and 4 supported the contention of opposite party Nos.1 and 6, which is to the effect that the appointment of the petitioner to be illegal and in so far as removal of opposite party No.3 is concerned, the same to be unjustified and as far as the allegations are concerned, with regard to misappropriation of fund of the Society, not a single document was produced, hence, therefore, the order in Dispute Case No.123 of 2020 as per Annexure-4 is not legally tenable, challenging which, the appeal was filed but thereafter, it was withdrawn with the liberty allowed to approach opposite party No.1. It is pleaded that as per Rule 22 of the Rules, the procedure prescribed therein was not followed, while issuing the order of removal i.e. Annexure-3. Further pleading is that upon such removal order vis- a-vis opposite party No.3, the Administrator disposed of the appeal and revoked the same and reinstated him by order dated 24th August, 2020 which was set aside by learned Registrar, Cooperative Society, Orissa, Bhubaneswar, while disposing of Dispute Case No.123 of 2020 on the premise that as per Rule 23, W.P.(C) No.14190 of 2024 Page 4 of 12 for major punishment in respect of an employee imposed by the Managing Committee, the Circle ARCS is the appellate authority and not the Administrator, whereafter, he appealed through a representation dated 6th March, 2024 before the ARCS, Banki and the same was at last allowed with the conclusion that the Society failed to produce the related records of the proceedings and it was held that there is no impediment to issue reinstatement of order, consequent upon which, order under Annexure-5 was passed but subsequent thereto, temporary arrangement has been made as per Annexure-8. The pleading of opposite party No.3 is against the claim of the petitioner denying all the charges regarding misappropriation of fund by him and in the lines of the reply of opposite party Nos.2 and 4. 5. Heard Mr. Tripathy, learned counsel for the petitioner, Mr. Praharaj, learned AGA and Mr. Sarangi, learned counsel for opposite party Nos.2, 3 and 4. 6. Mr. Tripathy, learned counsel for the petitioner submits that in view of the statutory mandate under Section 33-A of the OCS Act, the Rules has been formulated and prescribed by the orders of the Registrar, Cooperative Societies, Odisha, Bhubaneswar, and the same is to govern the service conditions of the employees of the Society. It is contended that in exercise of such jurisdiction read with Rule(s) 5 and 6 of the Rules, the petitioner was recruited to the post of Assistant Secretary after an interview was conducted by the Appointment Committee and thereafter, the appointment order dated 30th October, 2019 under Annexure-1 has been issued and in so far as opposite party No.3 is concerned, he has antecedents and even facing action in Surcharge Proceeding No.9 of 2017 initiated under Section 67 of the OCS Act, wherein, an award of Rs.16,17,772/- has been passed by learned Assistant Auditor General of Co-operative Society, Audit W.P.(C) No.14190 of 2024 Page 5 of 12 Circle Cuttack upon proof of misappropriation of fund of the Society and on account of such serious financial irregularity found substantiated, he was removed from service by the competent authority by order under Annexure-3. It is contended that opposite party No.3 filed Service Dispute Case No.13 of 2019 but the same was withdrawn and thereafter, the reinstatement order dated 24th August, 2024 was obtained, challenging which, Service Dispute Case No.123 of 2020 was filed under Section 68 of the OCS Act by one of the members and an Ex-Board of Director of the Society, namely, Mr. Ajay Kumar Panda, wherein, learned Registrar, Cooperative Society, Odisha by order dated 24th August, 2020 issued to opposite party No.3 held it as without authority, whereafter, TA No.9 of 2024 was filed before the State Cooperative Tribunal, Odisha under Section 109(1)(j) of the OCS Act but it was withdrawn unconditionally and notwithstanding the above, opposite party No.1 by a cryptic order dated 13th March, 2024 directed reinstatement once again, which is without authority and not in consonance with the settled principles of law decided by the Apex Court in UP State Road Transport Corporation Vrs. Vinod Kumar in Civil Appeal No.5669 of 2007 disposed of 6th December, 2012. The contention of Mr. Tripathy, learned counsel for the petitioner is that the order of reinstatement dated 13th March, 2024 is subject matter of challenge in W.P.(C) No.7711 of 2024 and in such view of the matter and against the aforesaid background of facts, the petitioner ought to have been allowed to function as the Secretary of the Society as he was directly recruited to the post of Assistant Secretary as per the Rules and continuing till date, hence, to be eligible but the same has not taken place and in so far as the audit report of the year 2017-18 and such other documents as at Annexures-B/6 and D/6 to H/6 of the counter affidavit of opposite party No.1 and 6 are concerned, the same have been W.P.(C) No.14190 of 2024 Page 6 of 12 procured to support the reinstatement of opposite party No.3 and that apart, such decision is not in confirmity with the Rules and in view of the order in W.P.(C) No.18735 of 2021. 7. On the contrary, Mr. Sarangi, learned counsel for opposite party Nos.2 to 4 opposed the engagement of the petitioner as the Secretary of the Society reiterating the plea that the appointment order issued to him as per Annexure-1 is not in accordance with the Rules. 8. Mr. Praharaj, learned AGA for the State would submit that reinstatement of opposite party No.3 is pending decision in W.P.(C) No.7711 of 2024 and as an alternative arrangement, considering the prevailing situation of the Society and for its smooth functioning, one Mr. Manas Kumar Routray, Secretary of Puincha, ACS Limited has been directed to remain in-charge of it until further orders vide Annexure-E/6. As far as, the acceptance of the joining report of the petitioner is concerned, it is contended by both Mr. Sarangi, learned counsel for opposite party Nos.2 to 4 and Mr. Praharaj, learned AGA that the very appointment since has not been in accordance with the Rules and as the same was duly intimated to opposite party No.1 vide Annexure-B/6, it could not have been accepted and rightly so. 9. In fact, the appointment to any posts of the Society shall have to be considered by the Managing Committee defined as per the Rules upon receiving recommendation from the Appointment Committee comprising of the President of the Society as the Chairman; Vice-President, representative of the financing Bank, one elected member duly authorized by the Committee of Management as its Members including a representative of the concerned Circle ARCS not below the rank of SARCS as the Member (Convener). The mode of appointment as per Rule 6 in W.P.(C) No.14190 of 2024 Page 7 of 12 respect of Grade-I post may be through a direct recruitment or deputation or promotion as the Managing Committee to consider in consultation with the financing Bank. The method of selection for direct recruitment is described in Rule 8 thereof. In so far as punishment of any of the employees of the Society including suspension and procedure for imposing minor and major penalties, it has been stipulated in Rule(s) 19, 20, 21 and 22 with the provision of appeal under Rule 23 to lie before the Managing Committee in respect of Grade-I employees, if the punishment is minor and to the concerned Circle ARCS from a decision of the Management Committee, where, it is major. As far as the reinstatement or removal order vis-à-vis opposite party No.3 is concerned, the matter is subjudice in W.P.(C) No.7711 of 2024. In fact, despite adverse orders, reinstatement of opposite party No.3 took place, challenging which, W.P.(C) No.7711 of 2024 is filed. According to Mr. Tripathy, learned counsel for the petitioner, since opposite party No.3 is prima facie not found suitable though reinstated and it was followed by an interim arrangement by an order in W.P.(C) No.7711 of 2024, opposite party Nos.1 and 6 ought to have accepted the joining report of the petitioner, instead, one Mr. Manas Kumar Routray, Secretary of another Society has been directed to remain in-charge of the Society. The contention is that the petitioner has been appointed as per the Rules and was issued with letter of appointment in 2019 i.e. Annexure-1 and even joined thereafter and considering the same, it was incumbent upon opposite party Nos.1 and 2 to consider his engagement. 10. The petitioner is stated to have joined on 8th November, 2019 as the Assistant Secretary of the Society pursuant to Annexure-1 so revealed from Annexure-2 with an endorsement thereon by opposite party No.2. Whether, the appointment order of the W.P.(C) No.14190 of 2024 Page 8 of 12 petitioner was cancelled by the Society after he was allowed to the join on 8th November, 2019 pursuant to Annexure-9? Whether the petitioner’s appointment was revoked and the same is borne out of record? Admittedly, appointment of the petitioner was as per Annexure-1 issued by opposite party No.2, who accepted the joining report from him as per Annexure-2 but referring to the audit report as at Annexure-G/6, it is claimed that Mr. Manoranjan Ghadei was allowed to be the in-charge Secretary of the Society, though, thereafter, it was modified vide Annexure-E/6. It is made to suggest that inspite of the appointment in 2019, there has been no further continuance of the petitioner. With the allegation that the appointment has not been carried out as per the Rules, it is further made to appear that necessary correspondence was held with opposite party No.2 by opposite party No.1 with an instruction to revoke the decision taken towards engagement of the petitioner and advice that if services of an Assistant Secretary is essential, to submit a proposal as per the Circular of the Registrar, Cooperative Society, Odisha, Bhubaneswar. 11. Since, the reinstatement of opposite party No.3 was challenged and it has been kept in abeyance in view of the order
Decision
the circumstances, there is no order as to costs. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 24-Dec-2024 19:03:05 W.P.(C) No.14190 of 2024 Page 12 of 12