DHARA SINGH versus DAR

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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Dhara Singh v. Dar - WRIT - A No. 31223 of 1992 [2006] RD-AH 18223 (28 October 2006)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                  Court No. 37

Civil Misc. Writ Petition No. 31223  of 1992

Dhara Singh

Versus

District  Assistant Registrar Cooperative societies

Hon.R.K.Agrawal.J.

Hon.Sanjay Misra.J.

This writ petition has been filed for quashing the order dated  13.7.1992 passed by the respondent whereby the services of the petitioner has been terminated under Regulation 59(i) (b) (iii) of the Regulations framed under section 30 of the Uttar Pradesh Primary Agricultural Cooperative Credit Society Centralized Service Rules 1976.  

The petitoner who was working as a Secretary of the Sadhan Sahkari Samiti Limited  Ahiyona District Allahabad  has challenged the order of termination mainly on two grounds namely that  he was not absconding  after 3.1.1992  and that he was not given any notice or opportunity prior  to passing of the order of termination. It is his case that against the order of transfer dated 3.1.1992 the petitioner had made a representation to the Regional Administrative Committee for cancelling the order of transfer  and when the said representation was not being decided, he had filed a Civil Miscellaneous Writ Petition before the  High Court which was finally disposed of on 28.2.1992 with a direction to the Deputy

Registrar Cooperative Societies Allahabad to dispose of the same expeditiously if possible within three weeks from the date of receipt of the representation. The petitoner alleges to have served a copy of the order upon Deputy Registrar Cooperative Societies Allahabad  by means of another representation dated 5.3.1992  which was rejected by the order dated 27.4.1992 . The petitioner alleges that in the meanwhile he fell ill and made various applications for medical leave and remained under the impression that by virtue of the order dated 28.2.1992 passed by  the  High Court he was entitled to remain at his post till the representation was decided. It is stated that an order of suspension dated 4.3.1992 was passed against the petitioner which was dispatched  to the petitioner's residential address but  was never served upon him. It is his case that in compliance of the transfer order and after rejection  of his representation, the petitioner handed over charge to the new Secretary on 17.7.1992 and he presented himself at the Head Quarter where he was told that his services have been terminated by the order dated 13.7.1992.                                                                                                                       A counter affidavit has been filed on behalf of the respondents wherein it has been stated that by the order dated 28.2.1992 the Hon'ble High Court had directed Deputy

Registrar Cooperative Societies  to decide the representation of the petitioner.  In compliance thereof, the representation was decided by the order dated 27.4.1992 whereby request of the petitioner to cancel his transfer order  was turned down on the ground that the petitioner  was charged with financial irregularities and an enquiry officer had already been appointed. It has been stated that the petitioner did not hand over charge even after passing of the suspension order dated 4.3.1992 and it is denied that the petitioner has handed over charge on 17.7.1992. The case of the respondents is that the documents enclosed  by the petitioner with respect to handing over charge are fabricated by the petitioner and actually the petitoner had absconded himself from 3.1.1992 continuously. It is stated by the respondents that upon appointment of the enquiry officer  the petitioner was given full opportunity to participate in the enquiry and lastly notice was published in the newspaper ''Dainik Jagran' on 22.5.1992 wherein he was directed to hand over charge  failing which action would be taken against him under Regulation 59(i) (b) (iii). It is also stated that the notices were sent at the residential address of the petitoner who had complete knowledge with respect to the pendency of disciplinary proceedings even then he preferred not to participate in the same.

In the rejoinder affidavit, the petitoner has stated that the order of  suspension was never sent to the petitioner at his residential address . He denied that documents relating to handing over charge are fabricated and has stated that the petitioner presented himself at the Head Quarter on 23.7.1992.

Heard learned counsel for the parties.

The relevant portion of the Regulation 59 is quoted here under :-

59. Disciplinary proceedings (1) (a) The disciplinary proceedings against a member shall be conducted by the Enquiry Officer referred to in clause (d) below with due observance of the principles of natural justice for which it shall be necessary that :-

i) the member shall be served with a charge sheet containing specific charges and mention of evidence in support of each  charge and he shall be required to submit explanation   in respect of the charges within reasonable time which shall not be less than fifteen days;

ii) the member shall also be given in an opportunity to produce at his own cost or to cross examine witnesses in his defence and shall be given an opportunity of being heard in person, if he so desires

iii) if  no explanation in respect of the charge is received or the explanation submitted is unsatisfactory the competent authority may award appropriate punishment considered necessary.

b) (i) Where a member is dismissed  or removed from service on the ground of conduct which has led to his conviction on a criminal charge; or

ii) where the member refuses,.or fails without sufficient cause to appear before the Inquiring Officer when specifically called upon in writing in appear; or

  iii) where a member has absconded and his whereabouts are not known to the district committee for more than three months;

iv) where it is otherwise ( for reasons to be recorded) not possible to communicate with him, the competent authority may award appropriate punishment without taking or continuing disciplinary proceedings;

It is seen that the regulation provides for due observance of the principles of natural justice for which it is necessary that a charge sheet containing specific charges  mentioning  the evidence in support thereof shall be served  and the explanation shall be required within reasonable time which shall not be less than 15 days.  An opportunity to produce and cross examine the witnesses as also an opportunity of being heard in person shall be given. Sub-clause  (I)(a) (iii) provides that if no explanation is received or the explanation submitted is unsatisfactory, the competent authority may award appropriate punishment. Sub-clause  (b) (iii) provides that where a member has absconded and his whereabouts are not known to the District Committee for more than three months, then the competent authority may award appropriate punishment without taking  or continuing disciplinary proceedings.  From a reading of the aforesaid provisions it is seen that the  competent authority  can pass an order of punishment without taking  or continuing disciplinary proceedings in case the  member has absconded and his whereabouts are not known to the District Committee for more than three months .In the present case,  the petitioner has absconded  after the transfer order dated 3.1.1992 and to such effect there is an  admission by the petitoner in para 11 to the writ petition to the effect that the petitioner did not join his place of transfer under the impression that there was an order of the court and therefore, he was entitled to remain at his place of working till his representation was decided.

It is the  case of the petitoner that the order dated 27.4.1992 rejecting his representation  was received by him at his village address on  10.5.1992. From the aforesaid admission, it is quite clear that the petitioner was absconding from 3.1.1992 upto at least 10.5.1992. It is his case that he presented himself at the Head Quarter on 23.7.1992. However, it is his contention that he started handing over charge to the New Secretary in the Month of May 1992 and the handing over of the charge was completed on 17.7.1992 . The respondents in the counter affidavit have categorically denied the genuinity of the documents regarding  handing over charge, filed as Annexures 13 to 15 of the writ petition and have  stated that the same is fabricated. It is the respondents case that the petitoner did not present himself at the headquarters even on 23.7.1992 .

From the aforesaid facts it is borne out that the petitioner had absconded  for a period of more than three months. He was therefore suspended on 4.3.1992 on the charge of financial irregularities and an enquiry officer was appointed. From 4.3.1992, even after publication of  notice in the newspaper on 22.5.1992, the petitoner did not appear before the enquiry officer. It therefore cannot be said that the petitioner had not absconded.  Under such circumstances the competent authority has exercised his power under Regulation 59 (1) (b) of the aforesaid Regulations.  

Reliance has been placed on the Division Bench decision of this Court in the case of Prem Chand Vs.

Registrar Cooperative Societies  U.P. Lucknow and others  1996 (3) UPLBEC 1817 wherein while dealing with a  similar provision under the U.P. Cooperative Societies Employees Service Regulations 1975 , this Court has held that the power under the said provision can be exercised only if it is established that the employee has absconded and his whereabouts are not known to the society for more than three months.  The factum of absconding of  the employee and absence of knowledge of his whereabouts with society are two conditions which must exist simultaneously  to enable the competent authority to exercise his power to award punishment without taking or continuing disciplinary proceedings.  It has been held that mere absconding of the employee cannot be sufficient for dispensing with the requirement  of taking  or continuing disciplinary proceedings.

The facts  of the present case clearly indicate that the petitioner was absconding  for more than three months and although notices were sent to the petitoner at his residential address they were returned back unserved.  The publication in the newspaper also went unanswered by the petitoner. Therefore, it can be held that  the society had made its efforts to trace the petitoner but he was not available at his residential address.  Such efforts taken by the society are sufficient proof  for arriving at the conclusion that the petitioner had not  intimated to the society about his whereabouts and society had made full efforts to trace the petitoner at his address. Since the petitoner was not available even at his address and had not informed about his whereabouts to the society during such a long period of more than three months  the requirement in the  rule regarding absence of knowledge of his whereabouts with society stands satisfied so as to enable the competent authority to exercise his power under the relevant regulation. The fact that the petitioner was absconding is quite clearly demonstrated on the record of this petition, therefore, the twin conditions essential for exercising the power under Regulation 59 (1) (b) (iii) were satisfied in the present case for passing the impugned order dated 13.7.1992 terminating the services of the petitioner.

In view of above, this petition lacks merits and is accordingly dismissed.  No order is passed as  to costs.

Dt. 28.4.2006

Naim

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