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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.