1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR. O R D E R S.B.CIVIL WRIT PETITION No.74/1995. : : Radhey Shyam Gupta Vs. Sawai Madhopur Central Cooperative Bank Ltd. & Ors. : : DATE OF ORDER : 26.2.2009. HON’BLE MR. MOHAMMAD RAFI Q, J. Mr. B.M.Singh for the petitioner. Ms. Rani Bhandari for Mr.A.K.Pareek for the respondent (s). ….. Reportable Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioner challenging the order dated 29.6.1982 by which recovery order under Section 74 (3) of Rajasthan Cooperative Societies Act, 1965 (for short “the Act of 1965”) for a sum of Rs.3338.44 was passed against him, order dated 16.4.1992 by which the petitioner was dismissed from service and order dated 13.10.1993 by which his appeal filed against the order of dismissal was rejected. 3. Petitioner was appointed as Manager with respondent-Sawai Madhopur Central Cooperative Bank Ltd. on regular basis by order dated 22.3.1979. He was transferred to Dadarpur Gram Sewa Sahkari Samiti Ltd., Dadarpur vide order dated 23.8.1979 and then transferred to Jhareda Gram Sahakari Samiti Ltd., Jhareda vide order dated 6/7.6.1980. He was served with charge-sheet on 7.7.1980 on allegation of non-joining at Jhareda despite his transfer. Petitioner submitted reply to the aforesaid charge-sheet on 6.11.1980. Respondents thereafter transferred the petitioner from Jhareda to Shyaroli in Gangapur Tehsil vide order dated 5.1.982. Petitioner submitted representation to Additional Registrar, Cooperative Societies, Jaipur, who stayed implementation of the order of his transfer. According to petitioner, Disciplinary Authority took annoyance with him for resisting the order of transfer, and arbitrarily placed him under suspension by order dated 5.4.1982. Respondents issued supplementary charge-sheet to him on 7.9.1982 alleging that there was shortage of stock to the tune of Rs.2275.33. It was alleged that petitioner embezzled this money. Petitioner submitted reply to the supplementary charge-sheet on 22.10.1982. During this time, petitioner was neither paid salary nor paid subsistence allowance. 2 Respondents issued yet another supplementary charge-sheet on 7.3.1983, which too was replied by petitioner on 2.4.1983. In the meantime, a notice under Section 74 of the Act, 1965 was issued to petitioner on 23.10.1981. Petitioner submitted reply to such notice on 5.6.1982 and demanded certain documents and opportunity to present his defence. According to petitioner, respondents without holding any full-fledged enquiry straightway passed order of recovery of Rs.3338.44 on 20.6.1982. It was thereafter that respondents vide order dated 16.2.1985 appointed Shri Vijai Singh as Enquiry Officer to hold enquiry into the aforesaid charge-sheet. Petitioner was still not paid subsistence allowance. He made representation to the Cadre Controlling Authority and at its intervention finally subsistence allowance for the period from July, 1983 to December, 1983 was paid to the petitioner on 24.1.1984. Petitioner approached the Payment of Wages Authority for payment of his salary from 16.12.1981 to 15.7.1982 and subsistence allowance from 16.7.1982 to 15.12.1982. Payment of Wages Authority by its order dated 28.8.1985 directed respondents to make aforesaid payment and also imposed penalty of Rs.3087.50. Instead of complying the said order, the respondents filed appeal against such order for payment of wages, which was 3 dismissed by the Court of District Judge, Sawai Madhopur vide order dated 24.7.1993. Respondents did not pay subsistence allowance even for the subsequent period and rather they served upon petitioner yet another supplementary charge-sheet on 24.3.1989 on the basis of audit objection for recovery of Rs.5822.90. Petitioner submitted reply to the same and contended that he has already filed appeal against the order dated 31.1.1986. Managing Director of respondent- bank then issued a notice to petitioner on 13.11.1990 calling upon him to appear for personal hearing before any penalty was imposed on him and informed that in case he failed to appear, ex-parte proceeding shall be initiated against him. Petitioner appeared before the Managing Director on 26.11.1990 and submitted a written representation that so far the subsistence allowance has not been paid to him since 1.1.1984 onwards due to which he was not being able to manage his defence either before the Enquiry Officer or before Special Auditor. It was submitted that though number of charge-sheets were issued to him, but so far enquiry proceedings have not been held in any of them for last seven years. Disciplinary Authority suddenly passed an order on 16.4.1992 dismissing petitioner from service. Petitioner submitted an appeal against such order of dismissal, which 4 was also rejected vide order dated 13.10.1993. Hence, this writ petition. 3. I have heard Shri B.M.Singh, learned counsel for the petitioner and Ms. Rani Bhandari, learned counsel for the respondents. 4. Shri B.M.Singh, learned counsel for the petitioner argued that Disciplinary Authority could not straightway dismiss the petitioner without holding an enquiry as contemplated under Rule 17 of PACS (Managers Selection, Appointment & Service) Rules, 1977 (for short “Rules of 1977”). It was submitted that the petitioner was served with number of charge-sheets on 7.4.1980, 9.9.1982, 7.3.1983 and 24.3.1989, but disciplinary proceedings in none of these charge-sheets were taken to their logical conclusion. It was submitted that even an Enquiry Officer was appointed by order dated 16.2.1985, but no enquiry whatsoever was conducted by him and no enquiry report was submitted. Petitioner was placed under suspension vide order dated 5.4.1982 and till the order of his dismissal was passed on 16.4.1992, he continued to remain under suspension for almost one decade. He was not paid subsistence allowance 5 except for the period from July, 1983 to December, 1983, therefore, action of the respondents was wholly illegal and arbitrary. Learned counsel submitted that first charge-sheet for alleged embezzlement made by the petitioner in fact was based on so-called shortage of stock at the erstwhile posting place of the petitioner and it could not be said to be an embezzlement and the third charge-sheet was again founded on the objection raised by special auditor against which the appeal of the petitioner was still pending. Learned counsel submitted that even if a recovery order was passed against him under Section 74 of the Act, that by itself would not dispense with the requirement of holding disciplinary enquiry as contemplated by Rule 17 of the Rules of 1977. Moreover, appeal filed by the petitioner against said recovery order has not yet been decided and no decision thereof has yet been conveyed to petitioner. The order passed under Section 74 of the Act was also bad in law because the competent authority even in that matter had not at all followed the procedure envisaged in the Rules framed thereunder. This order was passed without any opportunity of hearing to the petitioner, inasmuch as despite his request he was not provided copies of the documents and nor was he allowed to inspect the documents. On the contrary, the authority passing the order 6 under Section 74 of the Act has observed that petitioner while defending himself has virtually admitted admission his guilt and on that basis the order was passed. It is, therefore, prayed that the impugned orders be quashed and set aside. 5. Ms. Rani Bhandari, learned counsel for the respondents opposed the writ petition and submitted that once the proceedings against petitioner under Section 74 of Rajasthan Cooperative Societies Act, 1965 were finalized and recovery of amount of Rs.3338.44, which was embezzled by the petitioner, was ordered there was no need to hold a separate enquiry under Rule 17 of the Rules of 1977. It was argued that in doing so, proceeding of one of the charge- sheet was founded on the charge of the recovery order. Learned counsel submitted that it was not correct that no opportunity was provided to the petitioner before passing recovery order. The competent authority while passing the aforesaid order clearly observed that number of opportunities were provided to the petitioner, but he failed to avail of such opportunities and did not either present himself nor did he submit his defence. It was submitted that the order of dismissal was just and legal and in the circumstances when a period of 17 years have gone by since it was passed, no 7 interference was called for. It is, therefore, prayed that writ petition be dismissed. 6. I have given my anxious consideration to the rival submissions and perusal the material on record. Impugned order of dismissal dated 16.4.1992 clearly indicates that it is entirely founded on the recovery order passed against the petitioner on 29.6.1982. In fact, supplementary charge-sheet that was issued to the petitioner on 7.9.1982 was itself based on recovery order dated 29.6.1982. Impugned order of dismissal indicates that the petitioner did not appear during the enquiry proceedings on as many as eleven dates and in the meantime he was served with yet another charge-sheet on 24.3.1989, which was based on the audit objection raised by special auditor. The Disciplinary Authority has not paid any attention to the pleas raised by the petitioner in his representation that even though he was placed under suspension as long ago as 5.4.1982, but he was not paid subsistence allowance and owing to that reason, it was very difficult for him to appear before the Enquiry Officer and properly arrange for his defence. Petitioner made such representation to the Disciplinary Authority on 26.11.1990, which is on record as 8 Annexure-22. Petitioner submitted reply to charge-sheets, where he denied charges. Order of dismissal, which runs hardly into two pages, at its initial part refers to the charge- sheet dated 7.7.1980 and also to reply submitted by the petitioner on 26.8.1980, but no mention whatsoever has been made about contents of the reply. The order then in second para refers to supplementary charge-sheet dated 7.9.1982, to which also the petitioner submitted reply on 7.3.1983, which fact has been noticed by the Disciplinary authority, but no mention whatsoever has been made about contents of the reply. A perusal of the reply dated 7.3.1983 submitted by the petitioner indicates that petitioner demanded inspection of records which formed basis of charge-sheet. Moreover, a perusal of his reply dated 22.10.1982 to the charge-sheet also indicates that petitioner even in this reply requested for inspection of the documents, but nothing has been discussed thereabout by the Disciplinary Authority in his order. In third para of its order, Disciplinary Authority has referred to third charge-sheet issued to petitioner on 4.4.1989 and also reply submitted by him on 27.4.1989, but nothing has been said even regarding contents of this reply. Reading of order thus indicates that reference has been made to all the three charge-sheets, but 9 nothing has been stated whether the Enquiry Officer was appointed in each of them and whether any enquiry report has been submitted by the Enquiry Officer or whether the Disciplinary Authority himself conducted the enquiry in regard to charge-sheet for which the Enquiry Officer appointed on 16.2.1985 (Annex.18). A perusal of the order dated 16.4.1992 also does not indicate for which of the charge- sheets Shri Vijay Singh was appointed as Enquiry Officer. 7. Examination of Rule 17 of the Rules of 1977 indicates that penalty envisaged in Clause-I, II & III thereof, are in the nature of minor penalties. It is provided that such order of penalty could be passed by the Disciplinary Authority by simply serving notice and by obtaining reply of the delinquent. As regards the penalty of forfeiture of past service, removal/dismissal from service as mentioned in Clause-IV thereof, it has been provided that full-fledged enquiry shall be held before imposing such penalty by supplying relevant documents and enabling the parties to adduce their evidence by way of witness or documents and by giving opportunity of hearing. In the present case, in the first place, it is not clear that such proceedings were at all held by the Disciplinary Authority or in each of the charge- 10 sheets, separate Enquiry Officers were appointed but even if it be granted that Enquiry Officer held enquiry in any of them, the enquiry proceedings were wholly vitiated for the reason that the petitioner was not paid any subsistence allowance for the entire duration of suspension for the period of suspension from 5.4.1982 till he was dismissed vide order dated 16.4.1992 except for the period from July, 1983 to December, 1983 when at the interference of Cadre Controlling Authority, the subsistence allowance was paid to him. If on account of this reason, petitioner was not able to defend himself, he could not be blamed for that. Moreover, the order of dismissal as contemplated in Rule 17 of the Rules of 1977 was required to be passed independent of the proceedings under Section 74 of the Act. A reading of the impugned order of dismissal in the present case, makes it appear as if it is entirely based on the order of recovery passed under Section 74 of Rules of 1977 and the audit objection raised by special auditor. Nothing has been discussed by the Disciplinary Authority as to what would be implication of pendency of the appeal filed by the petitioner against the order of dismissal. The order of recovery under Section 74 of the Rules of 1977 also indicates that this order was passed mainly for the reason of absence of the petitioner 11 and for his inability to defend himself and for his absence on various dates. The order of recovery does not indicate as to what proof of embezzlement was submitted by the Department and in what manner it was analyzed and discussed by the Assistant Registrar holding such enquiry. In the normal course, this Court would not interfere in an order passed under Section 74 of the Rules of 1977 for directing recovery from Manager of Cooperative Society and would relegate the affected party to the alternative remedy available under the Rajasthan Cooperative Societies Act itself, but in the present case, I find that the order of recovery was passed in the circumstances when the petitioner was continuously under suspension and was not even provided subsistence allowance and which ultimately was passed against him for the reason of his inability to defend himself and finally, which formed the basis for order of dismissal, at this stage when almost more than 27 years have passed and appeal filed by the petitioner has remained undecided relegating the petitioner to the alternative remedy is not considered appropriate. 8. In my considered view, the impugned order of dismissal as also the impugned order of recovery under 12 Section 74 of the Rules of 1977 have to be held illegal as the same have been passed in illegal and arbitrary manner and utter violation of principles of natural justice. Action of the respondents in subjecting the petitioner to number of disciplinary proceedings as also the recovery proceedings without paying him subsistence allowance for almost a decade is an arbitrary and capricious action on their part and such orders were passed in colourable exercise of powers and are held to be violative of Article 14 & 16 of the Constitution of India. In view of what I have discussed above, this writ petition deserves to be allowed and it is accordingly allowed. The impugned order of recovery dated 29.6.1982, impugned order of dismissal dated 16.4.1992 and order dated 13.10.1993 rejecting the appeal of the petitioner are all quashed and set aside. The petitioner is held entitled to reinstatement with all consequential benefits throughout. The respondents would however at liberty to proceed with disciplinary enquiry as also the recovery proceedings against the petitioner afresh in accordance with law. 13 Compliance of this judgment be made within three months from the date copy of its produced before the respondents. (MOHAMMAD RAFI Q), J. A.Arora/- Item No.H/2. 14