High Court of Punjab and Haryana, Chandigarh
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Des Raj v. Registrar, Cooperative Societies, Punjab - CWP-2551-2005  RD-P&H 1115 (23 February 2006)
Civil Writ Petition 2551 of 2005
Date of decision: 19.1.2006
Des Raj ...Petitioner
Registrar, Cooperative Societies, Punjab, Chandigarh and another ...Respondents
CORAM: HON'BLE MR JUSTICE S.S.NIJJAR.
HON'BLE MR JUSTICE S.S.SARON.
Present: Mr, MS Kang, Advocate, for the petitioner.
Mr Ashwani Prashar, Advocate, for the respondents.
The petitioner, by way of the present writ petition under Articles 226/227 of the Constitution of India, seeks quashing of the orders dated 17.6.2000 (Annexure P4) and 4.1.2005 (Annexure P9), whereby he has been dismissed from the post of Senior Clerk of the Hoshiarpur Central Cooperative Bank Limited, Hoshiarpur (respondent No.2) (Bank for short).
The facts leading to the case are that at the relevant time, the petitioner was working as Senior Clerk with the Bank and was posted at Binewal Branch of the Bank. The Bank is a duly registered Cooperative Society under the provisions of the Punjab Cooperative Societies Act 1961 (Act for short). The service conditions of the employees of the Bank upto and including the rank of Junior Accountant are governed by the Punjab Cooperative Financing Institution Service Rules 1958 (Service Rules for short). Rule 9(ii) of the Service Rules provides that the provisions of the CWP 2551 of 2005
Punjab Civil Service (Punishment & Appeal) Rules 1970 (Punishment Rules for short) shall be followed in the matter of awarding punishment to the employees. In terms of Rule 10 of the Service Rules, the Registrar is the appellate authority and his decision is final and binding on the parties. For the period ending 31.3.1998, a "Verification Special Inspection Report" of the Binewal Branch of the Bank was conducted by Mr Amar Singh, the then Deputy Manager of the Bank. A copy of the report has been annexed as Annexure P1 with the petition. In terms of the said report, various irregularities like shortage in share money of societies/individual members, advancement of loan beyond Maximum Credit Limit (MCL for short), advancement of loan to dead members, advancement of loans in double Khatas, advancement of loans against wrong cheques, etc. were detected. In terms of the said report (Annexure P1), it is alleged that other employees namely S/Shri Surinderpal Singh Rana, Kewal Krishan, Mool Raj and Naresh Kumar, who are all Supervisory Officers in the rank of Junior Accountants, besides Smt Ashok Pathak, S/Shri Rattan Singh, Tarsem Singh and the petitioner who were all Clerks, were found to have committed the irregularities that had been detected. The petitioner, it is stated, had in fact committed the irregularities that had been detected on a far less scale as compared to others except S/Shri Tarsem Singh and Rattan Singh. The nature of the irregularities was the same in the case of all the officers and initial irregularity in all cases was committed by the other officers in terms of the report (Annexure P1). However, on the basis of the said report (Annexure P1), charge-sheets were issued to only four officers i.e. S/Shri Kewal Krishan, Naresh Kumar and Surinderpal Singh, Junior Accountants, and the petitioner. Mool Raj, Junior Accountant, and Smt Ashok Pathak, Clerk, who had advanced loans in the accounts of dead members on a much CWP 2551 of 2005
larger scale than the petitioners, were not proceeded against. Similarly, Rattan Singh and Tarsem Singh, Clerks, were also left out and were not issued any charge sheets. It is alleged that the petitioner was the only Clerk to be targeted. In any case, the four persons proceeded against had all committed the similar irregularities pointed out in the report (Annexure P1).
It is further alleged that impartial proceedings were liable to be conducted and charge sheets on all counts should have been issued to all the four persons proceeded against. However, since the petitioner alone was to be targeted and others were to be saved, the charge sheets on all the counts were not issued to those who were proceeded against. In this manner, it is alleged that a policy of pick and choose, favouritsm and nepotism was adopted right from the word go. It is further alleged that separate inquiries were held and similar charges as proved against the petitioner, were proved against S/Shri Kewal Krishan, Naresh Kumar and Surinderpal Singh Rana in many more transactions as compared to the petitioner. Many of the charges leveled against the petitioner in the charge sheet served on him could not be proved against him because on inquiry and perusal of the record, it was found that the said charges in fact pertained to aforesaid S/Shri Kewal Krishan and Naresh Kumar, etc. These charges were leveled against the petitioner with malafide motive of inflating the charges against him and scaling down the charges against Naresh Kumar and Kewal Krishan by ignoring the report (Annexure P1). The charge sheet dated 17.11.1999 (Annexure P2) served on the petitioner has been placed on record. In the consequent inquiry that was conducted in pursuance of the charge sheet (Annexure P2), the Inquiry Officer held six out of the seven charges attributed to the petitioner to have been proved. A copy of the inquiry report (Annexure P3) has been placed on record. The inquiry report, CWP 2551 of 2005
it is stated, was considered by the Administrator of the Bank and vide resolution No.3 dated 5.5.2000, it was provisionally proposed that the petitioner be dismissed from service of the Bank. The Manager, Head Office, was authorized to give him a show cause notice. Accordingly, a show cause notice was issued to the petitioner vide letter dated 10.5.2000.
The petitioner, however, did not submit his reply to the show cause notice.
His case was put up before the Administrator on 1.6.2000 and the petitioner was given an opportunity of personal hearing vide letter dated 2.6.2000 and he was asked to be present on 8.6.2000 to submit his case before the Administrator. The Administrator considered the matter and passed resolution No.3 dated 8.6.2000 which is to the following effect:- "The whole matter was considered at length and was heard orally also. Shri Des Raj Junior Clerk has not given any reply to the show cause notice. His previous record is also bad and earlier also because of his wrong doings he was reverted from the office of Junior Accountant to Senior Clerk and from Senior Clerk to Junior Clerk and he is also absent. Therefore, it is resolved that Shri Des Raj is dismissed from service.
Manager HO is authorized to issue orders in this regard." The said decision, it is alleged, has been passed on a pick and choose basis and because some scapegoat was to be found in order to protect those really guilty of not performing their duties. The petitioner filed an appeal against the said order before the Registrar, Cooperative Societies, Punjab (respondent No.1) who vide his order dated 18.4.2001 (Annexure P5) dismissed the same. The petitioner, aggrieved against the order of the Registrar filed a revision petition under Section 69 of the Act before the Financial Commissioner Cooperation, which was dismissed in limine on CWP 2551 of 2005
29.5.2001 (Annexure P6). The petitioner filed CWP 19178 of 2002 in this Court assailing the order of the Financial Commissioner. This Court vide order dated 12.10.2004 (Annexure P7) quashed the impugned orders and directed the appellate authority to take a fresh decision after giving an opportunity of hearing to the petitioner and after observing the rules of natural justice as indicated in the order. The Registrar, Cooperative Societies, Punjab (respondent No.1) considered the appeal of the petitioner and vide his impugned order dated 4.1.2005 (Annexure P9) has dismissed the same. The said orders (Annexures P4 and P9), as already noticed, are assailed in this petition.
On notice of motion, written statement was filed by the District Manager of the respondent Bank on behalf of respondent No.2. A preliminary objection has been taken to the effect that against the order dated 4.1.2005 (Annexure P9) passed by the Registrar, Cooperative Societies, Punjab (respondent No.1), a revision petition under Section 69 of the Act is maintainable before the Financial Commissioner and, therefore, the petition is liable to be dismissed. It is, however, accepted that the petitioner was working as a Junior Accountant in the Bank. It is stated that on account of the allegations of misconduct, the petitioner was reverted from the post of Junior Accountant to that of Senior Clerk. Besides, the petitioner was issued a charge sheet and on the basis of charges proved in the inquiry, the petitioner was reverted to the post of Junior Clerk. In this manner, the petitioner was brought to the initial post by the Bank on the basis of misconducts committed by him. The charges that were leveled against the petitioner have been indicated and it is stated that a proper inquiry was held against the petitioner before dismissing him from service.
Besides, during the course of inquiry, the petitioner has not denied the CWP 2551 of 2005
allegations. Therefore, a show cause notice was given to the petitioner proposing the penalty of dismissal from service. In spite of the inquiry report being supplied to the petitioner, it is stated that he did not file any reply to the show cause notice. The petitioner was then afforded a personal hearing by the Administrator (exercising the powers of Board of Directors in the Bank). The Administrator, agreeing with the report of the Inquiry Officer which was based on evidence on record and while seeing the previous punishments imposed upon the petitioner, decided to dismiss him from service. Accordingly, the order dated 17.6.2000 (Annexure P4) was passed by the Administrator dismissing the petitioner from service. It is further stated that the petitioner filed a time barred appeal before the Registrar, Cooperative Societies (respondent No.1) wherein the only point taken by him was that other similarly situated employees were let off with lesser punishments whereas the petitioner had been dismissed from service.
In this manner, it is stated that the petitioner has only claimed that equal punishment for the same charges has not been given to the other employees whereas the petitioner has been dismissed from service. It is also submitted that the Registrar, Cooperative Societies (respondent No.1) had directed the Assistant Registrar, Cooperative Societies, Hoshiarpur, to conduct an inquiry as regards the different treatment given to the other employees. It is, however, submitted that reasons for dismissing the petitioner from service is that the petitioner had already been reverted from the post of Junior Accountant to the post of Senior Clerk and then to Junior Clerk on the basis of other charges. Moreover, when the punishment was imposed on the petitioner, even at that time the petitioner was absent from service. Therefore, seeing the totality of the circumstances, the Administrator of the Bank had decided to dismiss the petitioner from CWP 2551 of 2005
service. As such, it is stated that no equality of punishment could be claimed by the petitioner with the others as they are not similarly situated.
As regards the matter of punishment is concerned, it is submitted that the petitioner had committed the irregularities and there are allegations of advances made to dead persons, double advancement of loan, making payments of loans without sanction of MCL or in excess of sanctioned MCL. It is, therefore, submitted that the writ petition is liable to be dismissed.
Mr MS Kang, learned counsel for the petitioner has raised two-fold submissions that similar treatment has not been meted out to the petitioner as has been given to his co-employees who are similarly situated and are attributed the same set of allegations. Besides, the past alleged misconduct in respect of the petitioner has been taken into account which was not the subject matter of the charge sheet and, therefore, the proceedings on these counts are vitiated.
In response, Mr Ashwani Prashar, Advocate, learned counsel for the Bank (respondent No.2) has contended that in fact the petitioner has not denied the charges attributed to him and he simply claimed leniency on the ground that in his case, all the amounts have been recovered whereas some loans had been advanced to dead persons and once the loans have been advanced to dead persons how could the same have been recovered from those dead persons. This, according to the learned counsel, clearly shows that the petitioner himself had embezzled the amount. It is also contended that the rules of natural justice and procedure had been duly complied with and the fact that other employees having similar charges against them were let off lightly while the petitioner was punished with dismissal from service has been duly considered by the Registrar, CWP 2551 of 2005
Cooperative Societies, Punjab (respondent No.1). Therefore, he is not entitled to any relief.
We have given out thoughtful consideration to the contentions raised by the learned counsel for the parties.
It is appropriate to note that in terms of the charge sheet dated 17.11.1999 (Annexure P2), the misconduct/irregularities attributed to the petitioner is as under:-
"1. Making payments of loan to fictitious persons when actual persons had already dead.
2. Making payments of loan by opening duplicate accounts when loan accounts had already been opened in the name of loanees and loans granted therefrom.
3. Making payments of loan without sanction of MCL or in excess of sanction MCL.
4. Payment of loan amounts on cheques not issued to the concerned loanees.
5. Grant of loan twice in the same crop against the instructions of RCS Punjab.
6. Violation of loaning policy/instructions of RCS Pb. By making advances after posting of fictitious entries of recovery, double advancement in Rabi crop 98-99 and to defaulter loanee members of Binewal CSS." As per the submissions of the petitioner, the charge wise findings of the Inquiry Officer are as under:-
" i) Charge of issuing loans to dead members in 12 cases proved in only four cases in two cases date of death could not prove and in remaining cases loan was found to have CWP 2551 of 2005
been advanced by S/Shri Kewal Krishan, Naresh Kumar or Surinder Pal Junior Accountants/Branch Manager.
ii) Issuing loan in double Khata in five cases proved in three cases. It could not be proved in fourth case and in the fifth case it was found to have been issued by Shri Naresh Kumar Junior Accountant.
iii)Issuing loans in excess of MCL to six members proved in five cases.
iv)Issuing loan to one member on cheques issued to another proved.
v)Issuing loan to three members twice (second time) in the same crop after recovery of first loan proved.
vi)Bogus recovery not proved.
vii)Issuing loan to three defaulter members proved in one case only."
It is further alleged that as per Annexure P1, loan was advanced to dead members on more than 100 occasions out of which petitioner has been proved to have advanced the loan only in four cases whereas Shri Naresh Kumar has done so in over 55 cases, Shri Kewal Krishan in over 12 cases, Shri Surinder Pal Singh in over eight cases, Shri Mool Raj in 9 cases, Smt Ashok Pathak in 6 cases and Rattan Singh in 2 cases. Similarly there were 40 instances of issuing loans in 8 double khatas out of which petitioner has issued loan on four occasions in 3 Khatas whereas it has been done by Shri Naresh Kumar in 17 cases, Shri Kewal Krishan in 6 cases, Shri Surinder Pal in 4 cases, Shri Rattan Singh in 2 cases and Shri Mool Raj in 1 case. The petitioner is the only person who has been dismissed. All money advanced by the petitioner, it is submitted, stands CWP 2551 of 2005
recovered. However, no action was taken against Sh Mool Raj and Smt Ashok Pathak who have issued loan to dead member on more occasions than the petitioner. It is on the strength of the said allegations that it is contended that there has been discrimination viz-a-viz the petitioner which he has pleaded in para 6 of the petition. In the reply that has been filed, it is admitted that out of 12 cases of issuing loan to members after death, the petitioner is responsible in four cases because he had issued the pay order.
However, in some cases, the Bank could not produce the death certificates and because of lack of evidence, the petitioner was given the benefit. It is further stated that even the advancement of loan in one case to a dead person is sufficient to warrant dismissal from service. In respect of charge No.2, it is submitted that the petitioner has been found guilty by the Inquiry Officer of advancing loan to three persons out of five mentioned in the allegations. In terms of charge No.3, it is averred that the petitioner has stated that the Inquiry Officer has arbitrarily held him guilty of the charge whereas the petitioner has clearly admitted before the Inquiry Officer that he has seen the MCL written in the Khata but not in the MCL register. Out of the six loans, the petitioner has been found guilty of issuing loan beyond the MCL in five cases by the Inquiry Officer. It is also stated that the petitioner has tried to justify the allegation No.4 on the ground that no loss has been caused to the Bank as the recovery had been made. However, this cannot be made the basis for exonerating him from the charges. A reference is made to the advancement of loan of Rs 30,000/- to one Baljit Singh on the basis of cheque number, the cheque book of which was not issued to him. The charge No.5 is stated to have been proved. It is accepted that charge No.6 was not proved. Charge No.7, it is stated has also been held to be proved by CWP 2551 of 2005
the Inquiry Officer. In view of the factual position, it is alleged that the petitioner cannot be given the benefit of any leniency.
The questions, therefore, that arise for consideration is whether a similar treatment is liable to be granted to the petitioner as has been meted out to other similarly situated employees of the Bank in respect of whom there are similar nature of allegations. Besides, whether the earlier punishments imposed on the petitioner could be made a ground for the imposition of the punishment of dismissal from service without putting the same to the petitioner.
A perusal of the pleadings and the submissions made by the learned counsel appearing for the parties shows that there apparently is not much dispute that the nature of the allegations as has been attributed to the petitioner and other employees of the Bank are similar in nature. In fact, these are evident from the perusal of the initial "Verification Special Inspection Report" for the period ending 31.3.1998 (Annexure P1). The case of the Bank as has been set up in the written statement is that the petitioner has allegedly committed embezzlement. Besides, his past misconduct was a factor which is liable to be taken into consideration for imposing the extreme penalty of dismissal from service. In fact, a perusal of the charge sheet dated 17.11.1999 (Annexure P2) would show that the allegations attributed to the petitioner are of serious misconduct and irregularities committed by him while working in the Binewal Branch of the Bank. The allegations, therefore, are of serious misconduct and irregularity and not one of embezzlement. Besides, the past misconduct is not one of the factors that was alleged against the petitioner in the charge sheet dated 17.11.1999 (Annexure P2) that was served upon him. It is expected of the Bank which is a cooperative society registered under the Act and is an CWP 2551 of 2005
instrumentality of the State and its employees in the matter of service, are governed by statutory rules, to act fairly in the sphere of its activities while dealing with its employees who are similarly placed or situated. It is now well settled that every action of the State or its instrumentality, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution of India and basic to the rule of law. The satisfaction of this basic test in an action of the State or its instrumentality is sine qua non to its validity. Therefore, there has to be fairness in the action towards the employees who are similarly situated. In fact, when the earlier writ petition i.e. CWP 19178 of 2002 was allowed on 12.10.2004 (Annexure P7) by a Division Bench of this Court of which one of us (S.S.Nijjar, J) was a member, a reference was made to an earlier order dated 7.10.2004 wherein it was observed that the Registrar, Cooperative Societies (respondent No.1) had in his order dated 18.4.2001 (Annexure P5) directed the Assistant Registrar, Cooperative Societies to find out the reasons as to why the petitioner has been discriminated in the matter of punishment when other delinquent officials facing the same charges have been given only minor punishments. It was prima facie observed that once the Registrar had marked the inquiry to the Assistant Registrar, the appeal could not have been decided without taking into consideration the findings of the inquiry officer. Accordingly, the State of Punjab was directed to produce the record with regard to the inquiry conducted by the Assistant Registrar. For this purpose the matter was adjourned on 7.10.2004 to 12.10.2004. On the adjourned date i.e. 12.10.2004, it was informed that although the inquiry report was available on the record but the record pertaining to the inquiry could not be made available for the present. Accordingly, this Court was of the considered opinion that the impugned orders deserved to be quashed CWP 2551 of 2005
having been passed in breach of the rules of natural justice. It was observed that once the competent authority had directed an inquiry to be made, the appellate authority could not have decided the appeal without taking into consideration the findings recorded by the inquiry officer. Furthermore, the findings of the inquiry officer cannot be taken into consideration by any of the authorities i.e. the disciplinary authority or the appellate authority without the same first being supplied to the petitioner to enable him to make a representation with regard to the inquiry report. It was also observed that the petitioner was entitled to plead that the findings recorded in his favour deserved to be accepted and the findings recorded against him are liable to be rejected. This could only be done if the findings of the inquiry officer together with the relevant record was made available to the petitioner. The appellate authority was, therefore, directed to take a fresh decision after giving an opportunity of hearing to the petitioner and after observing the rules of natural justice as indicated in the order dated 12.10.2004 (Annexure P7). In consequence of the said order passed by this Court, the Registrar, Cooperative Societies, Punjab (respondent No.1) has passed the impugned order dated 4.1.2005 (Annexure P9). A perusal of the said order shows that the copy of the inquiry report that was ordered to be conducted by the Registrar, Cooperative Societies, in terms of his earlier order dated 18.4.2001 (Annexure P5) was made available to the petitioner on 8.12.2004 and his representations on it were heard through his counsel at the time of arguments on 15.12.2004. The contentions of the learned counsel appearing for the petitioner that other employees having similar charges were let off lightly while the petitioner was punished with dismissal from service, was noticed. However, in the consideration process, the appellate authority i.e. the Registrar, Cooperative Societies (respondent CWP 2551 of 2005
No.1) has taken into account the past track record of the petitioner and compared it with that of the other similar employees. In fact, past record of the petitioner was not an allegation in the charge sheet dated 17.11.1999 (Annexure P2). Therefore, irrelevant material which was not liable to be taken into consideration in the decision making process has been taken into account. The past track record of the petitioner, vide order dated 4.1.2005 (Annexure P9) passed by the Registrar, Cooperative Societies has been considered in the following manner:-
The track record of Sh Des Raj on the other hand has been a series of misconducts and punishments. He was appointed as Clerk in the Hoshiarpur Central Cooperative Bank Limited, Hoshiarpur in 1975. While working as Junior Accountant in the Rore Majra branch of the Hoshiarpur Central Cooperative Bank Limited, Hoshiarpur in 1995, he was charge sheeted on the grounds of embezzlement of the Bank funds, misuse of powers, breach of trust and financial loss. The inquiry initiated against him held him guilty of the charges and the punishing authority issued him a show cause notice in December 1995, against which he did not submit any reply. The Punishing Authority after considering the inquiry report awarded him a major punishment and reverted him as Senior Clerk in April
1996. He was again charge sheeted in October 1998 while working in Garhshankar Branch on the grounds of absence from duty, creating indiscipline, hindrance in work and loss of work. The inquiry against him proved these charges also. The Administrator of the Bank after consideration issued him a show cause notice in July 1999, against which no reply was CWP 2551 of 2005
submitted in time. The Administrator vide orders dated 15.9.1999 stopped his four annual increments with cumulative effect, which again is a major penalty. Subsequently to that, while working at Binewal Branch as Senior Clerk, he was again charge sheeted on the grounds of misuse of powers, violation of loaning policy and misuse of bank funds, advancement of loans without completing relevant documents and without powers. An Enquiry Officer was appointed who submitted his report in July 1999. A show cause notice was issued in September 1999. After considering his reply to the show cause notice, another major penalty was awarded to him and he was reverted from Senior Clerk to Junior Clerk.
Another enquiry was ordered against him for his conduct at Garhshankar Branch on the grounds of absence from duty, remaining intoxicated under the influence of liquor, giving a bad reputation to the Bank and affecting the business of the Bank. The Enquiry Officer proved most of these charges, which were also admitted by Sh Des Raj. A show cause notice was issued to him for his dismissal from service." A perusal of the above shows that the past track record of the petitioner which was not an allegation in the charge sheet (Annexure P2) has been taken into account. In the case of MS Bajwa v. Punjab National Bank 1994(1) SLR, 131 (P&H), the petitioner therein who was an employee of the Punjab National Bank was served with a charge sheet alleging that while he was posted as Manager, he sanctioned loaning facilities to M/s AB Industries, Mohali, a firm floated by his wife along with another. However, he did not obtain permission or sent intimation for starting the business in CWP 2551 of 2005
the name of his wife in a partnership. After the inquiry was conducted, the disciplinary authority also took into account the various irregularities committed by the delinquent employee therein in the past and the punishments were imposed upon him for the proven misconducts on his part. It was held by this Court as follows:- "The previous punishments or the misconduct was never a part of the charge leveled against the petitioner. Consequently, he had no opportunity to meet this aspect of the matter. The disciplinary authority clearly appears to have been influenced by the fact that the petitioner had been accused of misconduct even prior to the issue of the present charge sheet. It has influenced its judgment in determining the quantum of punishment. In fact it is after mentioning the previous punishments that the authority has looked at the totality of the case. In my opinion, the Disciplinary Authority should have called upon the petitioner to explain his position if his previous conduct had to be taken into consideration. If such an opportunity had been granted, the petitioner could have possibly shown that even the Enquiry Officer had erred in finding that there was violation of clause 5(3) of the Conduct Regulations. He could have further shown that once the petitioner had been punished for a particular misconduct, the fact could not be taken into consideration in a subsequent proceeding especially for the purpose of determining the quantum of punishment. The action of the authority in not giving the petitioner such an opportunity was violative of the principles of natural justice.
CWP 2551 of 2005
In the circumstances, in the case in hand, the taking into account of the previous misconduct of the petitioner which was not a charge that had been attributed to him amounts to taking into consideration irrelevant material in the decision making process. This evidently infringes the test of reasonableness which inter alia enjoins that irrelevant material is not to be taken into consideration in the decision making process. The appellate authority i.e. The Registrar, Cooperative Societies has adverted to the previous misconduct of the petitioner which as already noticed has been discussed during the personal hearing of the petitioner. It was observed that the petitioner had already been reduced twice back to the rank of his original joining after serving more than 25 years. Besides, it was observed that even if the previous conduct (misconduct) is not taken into consideration, the present charges were grave enough to dismiss him from service. Despite observing this, in the same breath it was observed that with the previous track record of repeatedly and consistently working against the institution employing him, embezzling funds, committing frauds, culminating in the present charge sheet for similar grave offences, there would be no guarantee that he would not do the same in future also if he was allowed to remain in the institution. Besides, major punishments awarded to him a number of times, it was observed, have had no affect on his future conduct, which has continued to be persistently against his employer institution. Therefore, evidently, the reasoning recorded by the appellate authority shows that the past misconduct and irregularities of the petitioner have had a considerable bearing on the mind of the appellate authority in reaching its conclusion to impose the punishment of dismissal from service. This has clearly breached the principles of natural justice.
Besides, it is in violation of the earlier order dated 12.10.2004 (Annexure CWP 2551 of 2005
P7) passed by this Court. The petitioner had no opportunity to show that once he had been punished for the earlier misconducts, the same were not liable to be taken into consideration. In case the past conduct of the petitioner was to be taken as a circumstance for proving the allegations attributed to the petitioner, the same was liable to be made by way of an allegation in the charge sheet. A delinquent employee cannot be taken by surprise by taking into account his past misconduct for the purpose of proving the charges attributed to him without his being put to notice of the same. In Binny Ltd. V. Their Workmen AIR 1972 SC 1975, it was observed that where a delinquent is charged of a particular misconduct but the dismissal order is passed as a result of the cumulative effect of the particular misconduct charged as well as the past lapses for which opportunity to explain was not given, the order is not maintainable.
In the circumstances, we are of the view that this writ petition is to be allowed by invalidating the appellate order dated 4.1.2005 (Annexure P9) with the direction to the appellate authority i.e. the Registrar, Cooperative Societies (respondent No.2) to re-consider the matter afresh without in any manner in the consideration process adverting to the past conduct (misconduct) and irregularities committed by the petitioner as these were not the subject matter of the charge sheet dated 17.11.1999 (Annexure P2). Besides, in the consideration process, the Registrar, Cooperative Societies, shall take into consideration the similar punishments that had been imposed on the other employees who are similarly situated as the petitioner. However, the invalidation of the order dated 4.1.2005 (Annexure P9) passed by the Registrar, Cooperative Societies would not confer any benefit to the petitioner and he is merely relegated to the stage at which the defect in the proceedings has been committed. This is in accord with the CWP 2551 of 2005
judgment of the Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakaran AIR 1994 SC 1074.
For the foregoing reasons, this writ petition is allowed and the order dated 4.1.2005 (Annexure P9) is set aside and quashed with the direction that the appellate authority i.e. the Registrar, Cooperative Societies, Punjab (respondent No.1) shall re-consider the matter in the light of the above observations.
There shall, however, be no order as to costs.
( S.S.SARON )
19.1.2006. ( S.S.NIJJAR )
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