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Vijay Shanker Rai v. State Of U.P. And Others - WRIT - A No. 43327 of 2003  RD-AH 13049 (4 August 2006)
CIVIL MISC. WRIT PETITION NO.43327 OF 2003
Vijay Shanker Rai ....Petitioner
State of U.P. and others. Respondents
Hon'ble Bharati Sapru, J.
Heard learned counsel for the petitioner Miss Anuradha Sundaram, holding brief of Shri Anil Bhushan and Shri H.R. Mishra, learned counsel for the respondents.
The petitioner has sought a relief of a writ of certiorari to quash the order dated 23rd July, 2003, by which, his services have been dismissed by the respondents. The petitioner has also sought a relief of writ of certiorari to quash the resolution of the Board dated 10th December, 2003 constituted under the U.P. Co-operative Societies Employees Service Regulations, 1975 known as the U.P. Co-operative Institutional Service Board.
The petitioner was appointed as a sales man under the U.P. Consumer Co-operative Federation Limited and his services are governed under the U.P. Co-operative Societies Employees Service Regulations, 1975. He was appointed in the year 1978. The petitioner was dismissed from service by order-dated 6.11.97 when he was working at Fatehpur. He had been charged for as many as 24 charges but was exonerated on 15.10.93 and was reinstated in service.
Thereafter, the petitioner was charge sheeted on 11th of April 1997 and was charged with embezzlement for a sum of 15,888/- and an enquiry was set-up against the petitioner. An order was passed on 6.11.97 dismissing the petitioner. The petitioner filed writ petition No.875 of 1988 in which, the petitioner contended that an order of dismissal was passed without giving him an opportunity of hearing. The High Court in writ petition No.875 of 1988 noted that the order of dismissal had been passed, without giving to the petitioner a proper opportunity of hearing and, therefore, a proper opportunity of hearing was to be afforded to the petitioner. The writ petition No.875 of 1988 had been allowed by this Court.
Thereafter, the respondents issued a fresh notice to the petitioner on 17th of June, 2003 to give him an opportunity of hearing. The result of the writ petition was that the respondents were to conduct an enquiry de-novo giving to the petitioner an opportunity of hearing. The petitioner submitted a detailed representation on 21.7.03. An order of dismissal was passed on 23rd of July, 2003.
The petitioner has raised a legal submission in this petition which is contained in pargraph-28 of the writ petition which I quote herein below.-
"28. That the services of the petitioner are governed by the Uttar Pradesh Co-operative Societies Employees Service Regulations, 1975 and as per the disciplinary proceeding envisaged in Rule 85, a detailed procedure is required to be followed by the authorities and as per Rule 87, the major penalty can be imposed with prior concurrence of the Institutional Board, but in the present case, no prior concurrence has been obtained by the Managing Director before dismissing the services of the petitioner. For kind perusal of this Hon'ble Court, Photostat copy of the sections 85,86 & 87 of aforesaid Regulations 1975 is being attached herewith and marked as ANNEXURE NO.11 to this petition."
A reply is given to the said paragraph-
28 in paragraph-8 of the counter affidavit, which is also quoted herein below. :-
"8. That the contents of paragraph 28 and 29 of the writ petition are not admitted in the form they have been stated. In reply thereto, it is submitted that on decision taken by the competent authority to impose major penalty, the same is sent for concurrence to the U.P. Cooperative Institutional Service Board and on receiving the concurrence, the order becomes legally operative. In the instant case, since the dismissal order against the petitioner got approved by the Board, the subsequent order passed by the Managing
Director was not forwarded to the Board under bonafide impression that second approval was not needed. However, it is noteworthy that the entire papers were forwarded to the Board, which approved the dismissal order dated 23.07.2003 vide his letter dated 10.12.2003. A true copy of the letter of approval dated 10.12.2003 issued by the Secretary of U.P. Cooperative Institutional Service Board, Lucknow is enclosed and marked as ANENXURE.CA.'I' to the counter Affidavit. Consequently, the dismissal order would be treated operative from the said date. The law has been made settled on the point that where the approval is required, the decision taken on merits by the competent authority would become operative from the date, on which the approval is granted. Averments to the contrary are misconceived."
The relevant regulation-87 is also quoted herein below. :-
"87. Order imposing penalty under sub-clauses (e) to (g) of clause (1) of Regulation No.84 shall not be passed except with the prior concurrence of the Board."
Learned counsel for the petitioner has raised a legal submission and has argued that an order imposing a major penalty under Clause (e) to (g) of Clause (1) of Regulation 84 cannot be passed except with the prior concurrence of the Board. The facts are not in dispute in the present case. The order of dismissal was passed on the 23rd of July,2003 and the counter affidavit discloses in paragraph-8 that approval was granted by the Board on 10th of December, 2003.
Learned counsel for the petitioner has argued that the word ''prior approval' has a certain meaning after the enquiry is held by the officer and order imposing penalty is passed, prior approval for imposing a major penalty has to be given to the Board, which consists of members more than one. Therefore, Regulation 87 really contemplates that any decision, which is taken by an enquiry officer, should be put before a Board, which consists of members more than one. Regulation 87, therefore, is in the nature of a safety device. The purpose for enacting this Regulation, to my mind, is that two heads are better than one. Learned counsel for the petitioner has relied up on a decision of this Court reported in 2005 1 ESC 555 in the case of Govind Narayan Shukla Vs. State of U.P.and others. This Court in similar circumstances, where an order of dismissal had been passed under Regulation 84 1 (e) to (g) took a view that in the absence of prior concurrence of the Board, no order could have been passed under Regulation 87 of 1985.
In reply, learned counsel for the respondent Shri H.R. Mishra has very vehemently argued that the word ''prior' means either before or after. He argues that the purpose of concurrence of the Board is to see that rules of natural justice are complied with when an enquiry is contemplated under the provisions of Regulation and an opportunity of hearing is given to the delinquent officer. He has argued in the present case, in fact, on the earlier occasion, the Board had made approval on 5th of November 1997 and, thereafter, an order of dismissal had been passed on 6.11.97. Therefore, he argues that the Board, in the present case, had already applied its mind and the second concurrence of the Board given on 10.12.03 was given specifically because as declared in paragraph-8 of the counter affidavit, the respondents were under the bonafide impression that prior approval had already been granted. He has argued that in the present case, it should be understood that prior approval had already been granted.
Having heard learned counsel for the petitioner and having heard Shri H.R. Mishra, learned counsel for the respondent and having perused the record and the provisions of law, I am of the opinion that the contentions as raised by the learned counsel for the petitioner in paragraph-28 of the writ petition have substance and are legally sound. I am unable to accept the contentions as raised by learned counsel for the respondent.
A proper appreciation of Regulation 87 reveals that the word prior approval has been specifically included in the Regulation which can have no other meaning but that before passing any order of major penalty as contemplated under Regulation 84 1 (e) to (g), the Board of Directors has to apply its mind and then only an order imposing a major penalty can be passed. I draw strength from the decision cited by learned counsel for the petitioner supra and I am in agreement with the said judgment. To my mind, no other interpretation of Regulation 87 can be given. To do so, would render the very purpose of the rule redundant and the purpose for which the rule has been enacted would fail.
In the end result, the order of dismissal-dated 23.7.03 is bad for not having complied with Regulation 87. I hereby quash it and set it aside. The order dated 10.12.03 is also bad and illegal and is quashed and set aside. I direct the respondents to hold a fresh enquiry against the petitioner giving to him a proper opportunity of hearing and in accordance with law. They will faithfully comply with the provisions of Regulation 87. They may hold an enquiry and conclude the same within a period of three months from the date of production of a certified copy of this order.
The writ petition is allowed. There will be no order as to costs.
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