Wirsa Singh v. The Dhotian Cooperative Agricultural Service Society Ltd. Dhotian & Ors.

whereas the writ petitioner in CWP No.16625 of 1999 was appointed as Salesman. CWP No.4708 of 2000 -2- It may be pertinent to mention here that after the amalgamation, the petitioner in CWP No. 4708 of 2000 was also appointed as Salesman and not Secretary. The case of the petitioner is that after the election of the new committee the elected management committee was interested in appointing some favourite persons as Salesmen in place of the petitioner and, therefore, started making all possible efforts to remove the petitioner from the service of the society by all available means at their end. The petitioner claimed that his work and conduct was satisfactory and there was not a single complaint during his service. The respondent-society, all of a sudden issued a show cause notice to the petitioner, alleging serious allegations, which were claimed to be false by the petitioner. The petitioner submitted detailed reply to the show cause notice. The society was not satisfied with the reply submitted by the petitioner and passed the impugned order of dismissal. The order of dismissal was passed without holding any inquiry regarding allegations of mis-conduct. The Registrar, Co-operative Societies, Punjab, Chandigarh, issued instructions on 12.9.1994 laying down the procedure for dismissal of the employees of the co-operative societies, wherein it was provided that in case of allegations of mis-conduct like that of embezzlement, the employee was required to be given a chargesheet and thereafter inquiry was to be conducted giving opportunity to the employee to defend himself. It is only after the inquiry that order of dismissal could be passed. The instructions issued were in the nature of directions to CWP No.4708 of 2000 -3- comply with the principles of natural justice, before dismissing a confirmed employee, which even in absence of such instructions was required to be followed by an employer. The instructions issued by the Registrar, Co-operative Societies, Punjab, are binding and in any case have now been incorporated in the statutory rules framed by the Registrar by exercising the statutory powers under Rule 28 of the Punjab Co-operative Societies Rules, 1963, which provide as under: “14. PENALITIES: i) The following penalities for good and sufficient reasons may be imposed on an employee by the competent authority for the mis-conduct established on his part: - i) MINOR PUNISHMENT: a) Censure b) Reduction in emoluments c) Stoppage of increments ii) MAJOR PUNISHMENTS: a) Reduction in rank b) Removal or dismissal from service. In additional to the afore mentioned penalities, the committee may order recovery from the pay of the employee due to pecuninary loss caused by him to the Society by his negligence or by any willful acts of omissions or commissions on his part.

2. No order imposing any of the penalities specified in sub-rule (i) (i) above shall be passed except after giving written notice to the employee about the charge or charges levelled against him and after giving him an opportunity to represent his case within 15 days from the receipt of notice to be served on him. CWP No.4708 of 2000 -4-

3. In the case of inflicting major punishment as enumerated in sub rule I (ii) above, inquiry proceedings have to be initiated giving him reasonable opportunity to represent his case as per the details given below: - i) Notice in writing to the employee by the competent authority enumerating therein the charge/charges levelled against him shall be given with a direction to represent his case in writing within 15 days from the receipt of notice. ii) After the representation from the employee is received, the competent authority shall consider his representation in the light of charges levelled against him. iii) If after consideration of representation competent authority reaches at a conclusion that the reply of the employee is not satisfactory then he shall appoint some person as enquiry officer and another person as presenting officer. iv) The concerned employee shall be informed about the appointment of enquiry officer and presenting officer. The Enquiry Officer shall hear the case by affording opportunity of hearing to the concerned employee. The Presenting Officer shall put forth the case of the Society to the Enquiry Officer. Copies of all the documents relied upon in the enquiry shall be given to the concerned employee. The Enquiry Officer shall submit the report to the competent authority and competent authority after considering the report, if reaches at a conclusion that some major penalty is required to be inflicted on the employee, shall give a notice to the concerned employee proposing therein the penalty to be CWP No.4708 of 2000 -5- inflicted on the employee and to given him an opportunity to represent within a period of 15 days as to why this penalty should not be inflicted upon him. After the expiry of 15 days and after considering the reply of the employee, if received, the competent authority shall pass the orders of inflicting of major penalty on the employee.” Rule 14 provides, that the minor or major punishment like removal or dismissal from service, can be imposed for good and sufficient reasons after the mis-conduct is established. It further provides, that no punishment can be imposed except after giving written notice to the employee and giving an opportunity to represent his case within 15 days. On receipt of the reply, major punishment can only be inflicted after departmental enquiry is held wherein the employee is required to be given reasonable opportunity to represent his case. The instructions issued by Registrar which were binding were also on these lines, which were required to be followed, before dismissing a confirmed employee. The reading of the impugned order of dismissal shows that the Society while terminating the services of the petitioner ignored the principles of natural justice/instructions issued by the Registrar, as no enquiry was conducted into the charges levelled against him. Rather the impugned order is based on the charges, which were not mentioned in the show cause notice to which reply was submitted. The petitioner preferred an appeal under Section 15 of the Rules, which though came into force after the dismissal of the petitioner from service, but were enforced, providing statutory remedy of appeal. CWP No.4708 of 2000 -6- The appellate authority also committed an error in ignoring the contention raised by the petitioner, to challenge the dismissal order and proceeded to accept the allegations levelled against the petitioner, which were said to be serious, to uphold the order of dismissal, though the charges were not proved by holding enquiry by giving opportunity to the petitioner. The learned revisional authority also committed the same error, by upholding the order of the appellate authority without considering the fact that the allegations were not established, by holding an enquiry and were mere allegations, which were yet to be adjudicated. Mr. Vijay Sharma, learned counsel, appearing on behalf of the petitioner, challenged the impugned order of dismissal, the order passed by the appellate and revisional authority, primarily on the ground that the order of dismissal passed by the employer i.e. the Society, was in violation of the principles of natural justice. The services of confirmed employee on the ground of mis-conduct can only be dispensed with after holding an enquiry, and giving an opportunity for hearing to the petitioner. The orders under challenge were without jurisdiction and not sustainable being in violation of the principles of natural justice. Mr. Ranjit Saini, learned counsel, appearing on behalf of respondent No.1, supported the order by contending that the allegations against petitioner were of serious nature, like that of embezzlement and that there was an award by the arbitrator against the petitioner. The learned counsel for respondent prayed for dismissal of writ. On consideration, I find force in the contentions raised by the learned counsel for the petitioners. Once it is admitted that as per the instructions issued by the Registrar, and Rules framed adopting the CWP No.4708 of 2000 -7- instructions of the Registrar, otherwise also as per the principles of natural justice, which an employer was required to follow, were not adopted, and that the impugned order of dismissal was passed without holding any departmental enquiry, and that the Society took into consideration certain allegations qua which even notice was not issued. The impugned orders cannot be sustained, being arbitrary and in violation of Article 14 of the Constitution of India, as also the principles of natural justice. Consequently, the writ petition is allowed, the impugned orders are set aside, and a writ in the nature of mandamus is issued to the respondents to reinstate the petitioner with all consequential benefits of service. However, it shall be open to the employer to proceed with further enquiry, in case, it so desire to punish the petitioner for the mis- conduct alleged, by following procedure of law as contained in the statutory rules. No costs. July 08, 2010 R.S. (Vinod K. Sharma) Judge