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B. Singh And Others v. District Cane Services Authority & ors. - WRIT - A No. 18812 of 1989  RD-AH 165 (25 March 2004)
Civil Misc. Writ Petition No.18812 of 1989
Bhagwan Singh and others Vs. District Cane Services
Authority and others.
Hon'ble V.C. Misra, J.
Heard Sri R.C. Singh (Ram Chandra Singh) learned counsel for the petitioners. List is revised. No one has appeared on behalf of the respondents.
The case of the petitioners is that the petitioners 1 to 6 are the Seasonal Clerks appointed with respondent nos.2 and 3 registered under the U.P. Cooperative Societies Act and petitioner nos.7 to 9 are the payment-clerks. It is stated that the payment-clerks are also seasonal employees. Since their appointments, all the petitioners were placed in Category ''A' and were automatically re-employed in the next crushing season as provided under Regulation-26. That, upto the last crushing season 1988-89 all the petitioners who were placed in Category ''A' were entitled to be re-employed in the present crushing season 1989-90. The services of the petitioners have been terminated vide impugned order dated 15.9.1989 Annexures-1 to 9 to the writ petition. The petitioners are not holding any civil post.
The petitioners have submitted that by resolution dated 5.9.1989 passed by the District Cane Service Authority, they have been wrongly and illegally put in category ''B' arbitrarily in a mechanical way and without following the procedure provided under Regulation 21 of the U.P. Cane Cooperative Services Regulation, 1975. Regulation 21 reads as under :-
At the end of each crushing season the Secretary of the Cane Union shall classify the entire seasonal staff into ''A' and ''B' categories on the basis of their work and worth during the season. Such persons as possess unquestionable integrity and have discharged their duties efficiently during he crushing season shall be placed in ''A' category and the rest in category ''B'. When seasonal employee is proposed to be placed in category ''B' he will be informed of the same together with the grounds for his proposed categorization and an opportunity shall be given to him to explain the charges and deficiencies against him. These proceedings shall be of summary nature and shall be conducted by the Secretary of the Union concerned.
It has been further submitted by the respondents that before passing the resolution dated 5.9.1989 by placing the petitioners in category ''B' and the impugned order dated 15.9.1989 terminating the petitioners' services, no preliminary enquiry was made by the Secretary of the Union nor the petitioners were served with any notice in form of charges calling for their explanation to be submitted within a specified time nor any opportunity of hearing of any kind whatsoever was provided to the petitioners which is in contravention of the provisions of Regulation 27 of the said Service Regulation, 1975 and according to which in case of default on the part of the Secretary of the Cane or the District or Zonal authority as the case may be, in not completing the disciplinary proceedings against seasonal staff by the end of crushing season, the same is deemed to have been automatically dropped. Regulation 27 reads as under :-
Disciplinary Proceedings :- In the event of a complaint against any member of the seasonal staff the Secretary of the Union shall make a preliminary enquiry and if he is satisfied that a prima facie case is established against the person concerned, he shall intimate the same to him in the form of charges and call for his explanation to be submitted within a specified time. The Secretary of the Union shall examine records and submit his final report along with definite recommendations to the District or Zonal authority, as the case may be for passing final order in the case. In case the explanation is not received within the specified time the Secretary shall submit his final report to the District or Zonal authority as the case may be on the basis of material already on the file. These proceedings shall be of a summary nature and the Secretary should not take more than a month to complete the same. The District or Zonal authority, as the case may be should also arrange to dispose of the case within one month of the receipt of the final report from the Secretary. In case of default on the part of Secretary of cane union or the District or Zonal authority as the case may be, in not completing the disciplinary proceedings against a seasonal staff by the end of crushing season, the same shall be deemed to have been automatically dropped.
Being aggrieved, the petitioners have filed the present writ petition.
This writ petition was admitted on 17.10.1989 and by the said order, the operation of the impugned order dated 15.9.1989 had been stayed and the petitioners were allowed to continue in service. Learned counsel for the petitioners states that they are still continuing in services and the salary is being paid to them regularly.
The counsel for the petitioners has referred the cases similar to the present case in which the writ petitions have been allowed and the impugned orders were quashed; first one, Brij Raj Singh Vs. State of U.P. reported in 1984 UPLBEC page 1511, in which the reversion and termination of the petitioner was quashed on the ground that the mandatory procedure under Regulation 27 of U.P. Cane Co-operative Service Regulation, 1975 was not followed by the concerned authorities exercising their power under Regulation 200 whereby he could take immediate action in respect of any matter which he considers necessary to his satisfaction that circumstances exists for exercising that power. In the other case, Jagdish Prasad Vs. Sachiv, Zila Ganna Committee, Muzaffar Nagar and another reported in 1986 UPLBEC page 285 (S.C.). Regulation 68 of U.P. Cane Co-operative Service Regulation, 1975 which is parimateria to Regulation 27 had not been followed before passing the order by the concerned authority and thus, was quashed.
Sri Sanjeev Kumar, Advocate holding brief of Sri Shashi Nandan, Advocate, learned counsel for the respondents has cited case of Samrendra Das Advocate Vs. State of West Bengal and others reported in (2004) 2 Supreme Court Cases-274 which is not applicable to the facts of this case, since in the said case their Lordships have held that the matter should be referred to the Tribunal in respect with the cases of the termination of the services of the Government employees. In the present case, the petitioners are employees of the cooperative society duly registered under the U.P. Cooperative Societies Act, 1962 and do not fall in the category of public services.
The respondents till date have not filed their counter affidavit in rebuttal to the averments made in the writ petition, in spite of time being granted to them on several dates on the request of their learned counsel. It is settled law that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct and the presumption is in favour of the petitioner in terms of Section 114 Illustration (G) of the Evidence Act, as laid down in catena of decisions including A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. ppage 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the writ petition to be correct and true. I find that the impugned order deserves to be quashed having not been passed in accordance with law.
In view of the facts and observations made hereinabove, the impugned order dated 15.9.1989 Annexures-1 to 9 to the writ petition are quashed. Let a writ of certiorari be issued.
The writ petition is allowed with no order as to costs.
March 25, 2004
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