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Avnish Bhatnagar v. The State Of U.P. And Others - WRIT - A No. 20861 of 2007  RD-AH 9125 (14 May 2007)
Civil Misc. Writ Petition No.20861 of 2007.
Avnish Bhatnagar ...........Appellant
The State of U.P & others ...........Respondents.
Hon'ble Ashok Bhushan, J.
Heard Shri T.P.Singh, learned Senior Advocate assisted by Shri Anil Kumar Srivastava for the petitioner, Shri P.K.Singhal appearing for respondent No. 5 to 7 and the learned Standing Counsel for respondents No. 1 to 4.
The learned counsel for both the parties prayed that the writ petition be finally decided since both the parties have exchanged their affidavits. As prayed by learned counsel for both the parties, the writ petition is being finally decided.
By this writ petition, the petitioner has prayed for quashing the impugned suspension order dated 15.3.2007 passed on behalf of respondent No. 6 and signed by respondent No. 7. The petitioner is working as Section Officer/Technical Officer in U.P Urban Cooperative Bank Limited, Rampur.
The petitioner's case in the writ petition is that Charge of acting Secretary/Mukhya Karyapalak Adhikari was given to respondent No. 7 by order dated 21.12.2006. By order dated 21.12.2006 the Chairman of the Bank relieved the earlier Secretary of the Bank and appointed respondent No. 7 as officiating Secretary which decision was subsequently rectified by resolution of Board of Management dated 28.12.1996. District Assistant Registrar send the report dated 6.1.2007 recommending that the order dated 21.12.2006 of the Chairman of the Bank be made ineffective in exercise of power under section 128 of U.P Cooperative Societies Act 1965 hereinafter referred to as Act. The Joint Registrar Cooperative Societies Moradabad Region stayed the effect of the decision dated 21.12.2006 by issuing notice to the Chairman and by subsequent order dated 2.2.2007 declared the decision dated 21.12.2006 as inoperative. On 25.1.2007 the District Assistant Registrar appointed one Shri Atma Ram Verma, Additional District Cooperative Officer as Secretary of the Bank in place of earlier Secretary Shri Jahagir Khan, Assistant District Cooperative Officer. The new Secretary submitted his joining on 27.1.2007. By an order dated 15.3.2007 issued by Secretary Mukhya Karyapalak Adhikari, respondent No.7 who was appointed on 21.12.2001 as Officiating Secretary the petitioner was placed under suspension and Secretary of the Bank was appointed as Inquiry Officer an authorised to issue a charge sheet. The said notice was published in the newspaper Dainik Jagran on 1.4.1997. The petitioner wrote a letter to Shri Atma Ram Verma Secretary of the Bank about the publication of the notice dated 1.4.2007. Shri Atma Ram Verma wrote back to the petitioner that he has been appointed as Secretary of the Bank and no steps have been taken for suspension of the petitioner and the notice published in the newspaper is illegal. A charge sheet dated 5.4.2007 was also issued to the petitioner signed by respondent No. 7 as Secretary of the Bank. The joint Registrar by order dated 7.4.2007 cancelled the order of the District Assistant Registrar dated 25.1.2007 appointing Shri Atma Ram Verma as Secretary in place of earlier Secretary Shri Jahagir Khan. The Joint Registrar directed that within one month with the approval of the Institutional Cooperative Service Board a regular Secretary be appointed.
The petitioner by this writ petition, has challenged the order dated 15.3.2007 issued by respondent No. 7 and prayed for quashing of the order. A counter affidavit has been filed on behalf respondents No. 5, 6 and 7. In the counter affidavit it has been stated that respondent No. 7 was appointed as Officiating Secretary by the Committee of Management on 28.12.2006 and it is respondent No. 7 who was working as officiating Secretary when the suspension order was issued. Shri Atma Ram Verma the Secretary appointed by District Assistant Registrar vide his letter dated 25.1.1997 did not join in the Bank. The Staff Committee of the Bank has taken a decision vide resolution dated 10.3.2007 to suspend the petitioner and in compliance of the said resolution order dated 15.3.2007 has been passed. The earlier Secretary Shri Jahagir Khan was not discharging his duties properly, hence, he was relieved from the post of Secretary of the Bank on 21.12.2006 and respondent No. 7 was given charge of the Secretary on 21.12.2006. Subsequently on 28.12.2006 a fresh resolution was passed by the Board of Management appointing the respondent No. 7 as Secretary of the Bank. The appointment of Atma Ram Verma as Secretary of the Bank has been cancelled by order dated 7.4.2007 by the Joint Registrar Cooperative Society.
The learned counsel for the petitioner challenging the order dated 15.3.2007 contended that the respondent No. 7 was not the Secretary of the Bank and had no authority to issue the suspension order dated 15.3.2007. It is submitted that no resolution was passed on 10.3.2007 by the Staff Committee for suspension of the petitioner. It was Atma Ram Verma who was appointed as Secretary of the Bank on 25..1.2007 and he continued on the post of Secretary till 7.4.2007, hence during this period respondent No. 7 could not have acted or functioned as Secretary. Thus issuing the order of suspension was wholly without jurisdiction. It is further contended that charges against the petitioner are frivolous and incorrect. In fact the inquiry was conducted by District Assistant Registrar and it was one Sanjiv Agarwal and Shri Rama Shanker Pandey who were found liable for amount of Rs.45700/- each and an order under section 68(2)(3) for recovery of the aforesaid amount was passed and Directors Sanjiv Agarwal and Rama Shanker Pandey were held ineligible for any election for five years.
Shri P.K.SInghal, learned counsel appearing for respondents No. 5 to 7 refuting the submission of the counsel for the petitioner contended that although the decision dated 21.12.2006 of the Chairman of the Bank giving charge of the officiating Secretary to respondent No. 7 was set aside by Joint Registrar , Cooperative Societies vide his order dated 7.4.2007 but the respondent No. 7 was appointed as Secretary vide resolution dated 28.12.2006 and was fully entitled to continue as Secretary and the order dated 15.3.2007 has rightly been issued by respondent No. 7 as Secretary of the Bank. It is contended that although Atma Ram Verma was appointed as Secretary of the Bank vide order dated 25.1.2007 by District Assistant Registrar Cooperative Societies but Shri Atma Ram Verma was not given joining in the Bank and it was respondent No. 7 who was functioning in the Bank as Secretary. It is further submitted that under the Bye-laws of the Society it is the Staff Committee appointed by Board of Directors who has power to take disciplinary action against the staff of the Bank. The petitioner was suspended by Staff Committee vide its resolution dated 10.3.2007.
I have considered the the submissions and perused the record.
On the submissions which have been raised by counsel for the parties following issues arise for consideration in this writ petition;
i) Whether the respondent No. 7 was the officiating Secretary of the Bank entitled to issue the suspension order dated 15.3.2007.
ii) Whether the Secretary appointed by District Assistant Registrar vide its order dated 25.1.2007 i.e Atma Ram Verma was holding post of Secretary denuding the power of respondent No. 7 to act or function as Secretary of the Bank.
iii) Whether the Staff Committee passed a resolution dated 10.3.2007 suspending the petitioner.
The first and second issues being interconnected are taken together. The U.P Cooperative Socialites Act 1965 and the U.P Cooperative Societies Rules 1968 provides for manner and procedure of appointment of Secretary of a Cooperative Society. The U.P Urban Cooperative Bank Ltd. Rampur is a registered Society under the Act 1965.
The Secretary is Chief Executive Officer of the Society and is appointed in accordance with Section 31(1). Chapter X of U.P Cooperative Societies Rules 1968 governs the manner and procedure for appointment of Secretary. Rule 124, 126 and 127 are quoted as below:
"124. (1) No cooperative society shall appoint any person as its secretary who does not possess the qualifications laid down under Section 120, or who fails to furnish the security as may, if any, be required under that section or who is a near relation of a member of the Committee of Management of the Society. Every such appointment shall be subject to the regulations, if any, framed under Section 121 or 122.
(2) Where the Government-
(a) has subscribed to the share capital of co-operative society to the extent of not less than one lakh rupees; or
(b) has given loans or made advances to a co-operative society; or
(C) has guaranteed the repayment of principal and the payment of interest on debentures issued by a co-operative society; or
(d) has guaranteed the repayment of principal and payment of interest and loans and advances to a co-operative society;
then, the appointment of the Secretary of such a co-operative society shall be made subject to the prior approval of the Registrar, as provided in Rule 125.
126. Notwithstanding the provisions of Rules 124 and 125, a co-operative society may request -
(i) the Registrar or the State Government though the Registrar to lend for a specific period to the society on deputation or free or on contribution basis the services of any government servant to hold the office of the Secretary of the society:
(ii) any central society to place the services of any of its employees on deputation with the co-operative society to hold the office of Secretary in the society for specific period.
127. (1) Pending appointment of of a Secretary under Rule 125 or 126, the committee of Management of the society may, subject to the provisions of Section 120 and the regulations framed under section 121 or 122, appoint any suitable person as officiating Secretary.
(2) The officiating Secretary appointed under sub-rule (1) shall hold office for a period not exceeding six months or until the appointment of a Secretary under Rule 125 or 126, whichever is earlier.
Under Sections 122 the State Government may constitute an authority to control employees of Cooperative Societies.
The State Government has constituted that U.P Cooperative Institutional Services Board which has framed regulation with the approval of State Government namely U.P Cooperative Societies Employees' Services Regulation 1975. Rule 5 provides for recruitment. Regulation 5(1) is quoted as below:
"5. Recruitment - (i) Recruitment for all appointments in a cooperative society shall be made through the Board whether the recruitment is -
(a) direct; or
(b) by promotion from employees already in the service of the society; or
(c) by taking on deputation or otherwise, person already in the service of another society; or registered or deemed to have been registered under the Act, or a person in employment under a corporation an undertaking owned or controlled by the Central or the State Government body corporate administering a local fund. "
From the facts brought on the record it is proved that prior to 21.12.2006a Secretary was appointed in the Bank by the District Assistant Registrar vide his order dated 17.6.2006, the said Secretary was Shri Jahagir Khan , Additional District Cooperative Officer. The Secretary appointed in the Bank was on the budgetary support of the state and being a State Officer was working as Secretary and was receiving Salary from the State Government. The said appointment of an Officer of the State Government was obviously made on the request of Board of Director of the Bank. Dispute arose on 21.12.2006 when the Chairman of the Bank passed an order relieving the Secretary appointed by District Assistant Registrar and authorising respondent No. 7 Shri Sandeep Agarwal to function as officiating Secretary in his place. The Assistant Registrar after coming to know about the decision dated 21.12.2006 made a reference to the Joint Registrar Cooperative Society questioning the validity of the decision dated 21.12.2006. The Joint Registrar stayed the operation of the decision dated 21.12.2006 on 6.1.2007 and issued notice to the Bank to submit reply. The bank submitted a reply to the Joint Registrar justifying the decision of the Chairman dated 21.12.2006. It was also stated in the reply that the decision of the Chairman has been ratified by the Board of Directors in its meeting dated 28.12.2006, hence respondent No.7 is entitled to function as secretary and Jahangir Khan, the Secretary appointed by District Assistant Registrar has been relieved. The order of the Joint Registrar dated 2.2.2007 has been filed as Annexure-5 to the writ petition. The Joint Registrar took the view that the decision of the Chairman of the Bank dated 21.12.2006 was illegal and set aside the same. The Joint Registrar also noticed the reply of the Bank including the fact that the decision dated 21.12.2006 was ratified by the resolution dated 28.12.2006. The Joint Registrar noticed the fact that the District Assistant Registrar vide his order dated 17.6.2006 appointed Jahangir Khan, Additional District Cooperative Officer, Rampur as Secretary of the Bank. By adjudication made by Joint Registrar on 2.2.2007, the relieving of Jahangir Khan, the Secretary appointed by District Assistant Registrar stood set-aside and the Secretary appointed by District Assistant Registrar was restored. The resolution dated 28.12.2006 was a resolution approving the decision of the Chairman dated 21.12.2006. Moreover, the resolution dated 28.12.2006 of the Board of Management filed as Annexure CA-4 to the counter affidavit refers to Rule 127 for basis of such resolution. Rule 127 as extracted above is a power of the Committee of Management to appoint an officiating Secretary pending appointment of a Secretary under Rule 125 or 126.
When the decision of the Chairman who relieved the Secretary appointed by the District Assistant Registrar was set-aside by the Joint Registrar, the Secretary appointed by District Assistant Registrar was restored back into his office and there was no occasion to appoint an officiating Secretary. Furthermore, the District Assistant Registrar vide his order dated 25.1.2007 appointed Atma Ram Verma in place of Jahangir Khan. Thus the Secretary appointed by District Assistant Registrar, who was a State Officer continued as Secretary of the Society. An officiating Secretary even if appointed on 28.12.2006 came to an end on 25.1.2007. Another subsequent resolution dated 9.2.2007 of the Board of Director has been filed as Annexure CA-6. It is relevant to note that a Committee considered the order of the District Assistant Registrar dated 25.1.2007. The Committee noted that the District Assistant Registrar has appointed Sri Atma Ram Verma as Secretary of the Bank. The Committee resolved that the District Assistant Registrar be requested to give a regular Secretary to the Bank and Atma Ram Verma be given joining after the direction of the District Assistant Registrar. It is relevant to note that on 2.2.2007 the Joint Registrar has set-aside the decision of the Chairman to relieve Jahangir Khan as Secretary and to appoint respondent No.7 as officiating Secretary. Thus the Board has not passed the resolution that District Assistant registrar is not authorised to appoint the Secretary rather resolution was passed to make a request to the District Assistant registrar to give a regular Secretary. Thus in view of the order of the Joint Registrar and resolution of the Board of Directors dated 9.2.2007, respondent No.7 was not authorised to function as Secretary and it was Atma Ram Verma who was validly appointed Secretary of the Bank. The respondents themselves have come with the case that appointment of Atma Ram verma was cancelled on 7.4.2007 by Joint Registrar, which fact has been quoted in paragraph 6 of the counter affidavit. In view of the fact that appointment of Atma Ram Verma was cancelled on 7.4.2007, his appointment was thus continuing till 7.4.2007 and on the relevant date i.e 15.3.2007 the respondent No. 7 Sandip Agarwal was not entitled to function as Secretary or issue the order dated 15.3.2007. Thus it is held that respondent No. 7 has no authority to issue the order as Secretary of the Bank.
Now comes the third issue for consideration it has been stated in the counter affidavit in paragraph 19& 20 i.e that a Staff Committee of the Bank had taken no decision to suspend the petitioner vide resolution dated 10.3.2007.
It is relevant to note that in the writ petition, there is no challenge to the resolution dated 10.3.2007 nor there is any prayer for quashing the said resolution. The resolution dated 10.3.2007 passed by Staff committee as claimed by the respondent having not been challenged in the writ petition, it is not necessary to examine the correctness or otherwise of the resolution dated 10.3.2007 and no orders are required to be passed in this writ petition with regard to resolution dated 10.3.2007 passed by the Staff Committee.
In view of the foregoing discussion, it is held that the respondent No. 7 was not functioning as Secretary of the Bank on 15.3.2007 nor was authorised to issue the order dated 15.3.2007. The letter dated 15.3.2007 issued by respondent No. 7 is quashed. it will however, be open for the Secretary of the Bank to issue a fresh order in accordance with law. However, it is made clear that no determination is made in the writ petition with regard to the resolution dated 10.3.2007 of the Staff committee nor any order is passed in this writ petition with regard to the said resolution.
The writ petition is disposed of accordingly.
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