IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO.72 of 2011 Date of decision: 21.9.2011 Jhallan Cooperative Agriculture Service Society Ltd. ….Petitioner Versus The Assistant Registrar Cooperative Societies and others ….Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No For the petitioners: Mr.Ajay Sharma, Advocate. For the respondents: Mr.Vivek Singh Thakur, Addl.A.G. for respondents No.1,3&4. Mr.Amit Sharma, counsel for R-2. _________________________________________________ Deepak Gupta, J. (oral) 1. The petitioner, by means of this petition filed under Article 227 of the Constitution of India, has challenged the order passed by respondent No.3 whereby stay order has been granted and the petitioner has been directed to permit respondent No.2 to join as Secretary of the Petitioner Society. 2. The case of the petitioner is that respondent No.2 while working as Secretary of the Society was allegedly involved in embezzlement of some funds and was even arrested by the Vigilance Department. Respondent No.2 was therefore placed under suspension and directed to mark 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 his presence in the office of the Society. Against this suspension order, respondent No.2 filed an appeal before the Assistant Registrar (Cooperative Societies), Hamirpur who vide his order dated 4.10.2010 ordered that the petitioner society may take up the matter with the Vigilance Department and revoked the suspension of respondent No.2. 3. Thereafter, the petitioner Society passed a Resolution No.8 dated 23.8.2010 to the effect that since there were serious allegations against respondent No.2, the competent authority should appoint an Inquiry Officer to look into the allegations levelled against respondent No.2. It is alleged that instead of appointing an Inquiry Officer, on 4.10.2010 respondent No.1 ordered that the Society should revoke the suspension of respondent No.2. This order has been challenged by the Society by filing an appeal before the Additional Registrar (Cooperative Societies), Dharamsala, District Kangra. Thereafter, the Society passed another resolution on 1.1.2011 to the effect that since respondent No.1 had not appointed any Inquiry Officer to look into the allegations levelled against respondent No.2 for more than three months, the General House of 3 the Society resolves to dismiss and remove respondent No.2 from service. 4. Thereafter, respondent No.2 filed an appeal. Notice of this appeal was issued to the Society to appear before respondent No.3 on 28.2.2011. It is alleged that a request was made on 28.2.2011 to grant time to file reply to the application but respondent No.3 passed an order staying the operation of the Resolution of the Society and till the final disposal of the appeal before him. Thereafter, the present petition was filed and in this petition on 9.3.2011 it was directed that the petitioner Society shall not be under any obligation to re-employee Ashok Kumar till further orders. 5. Reply has been filed by the respondents and rejoinder has also been filed by the petitioner. 6. I have heard learned counsel for the parties and am of the view that in this case certain directions need to be issued to ensure that justice is done to all concerned. 7. Though the General House of a Society is the supreme body, no order of dismissal of an employee can be passed, especially when it is stigmatic in nature, without holding an inquiry and without giving an opportunity of being heard. 4 Therefore, on the face of it, the dismissal order passed by the Society appears to be illegal. At the same time, this Court cannot loose sight of the fact that the Society has on two occasions requested the officials of the Cooperative Societies Department to hold an inquiry into the functioning of respondent No.2. In fact, a charge sheet was framed against respondent No.2 vide Resolution dated 9.3.2009. According to the respondents, respondent No.1 directed the District Audit Officer to inquire into the charge- sheet who submitted his report on 9.3.2010 and showed his inability to inquire into these charges since they were under investigation with the Vigilance Department. Thereafter, another charge-sheet on different charges was prepared by the Society and respondent No.1 was again asked to appoint an Inquiry Officer. 8. The stand of the State is that the suspension was revoked on the ground that respondent No.2 was booked by the Vigilance Department on 12.2.2009 and the Vigilance Department had not even filed the challan in the Court in the case. The appeal filed by the Society has not been disposed of till date. The charges levelled against respondent No.2 are very serious. I am 5 purposely not going into the charges in detail because I do not want to prejudice the rights of either party. However, a Society which has lost faith in an employee cannot be forced by the officials of the Cooperative Society Department to retain the employee in service especially when this would give an opportunity to the employee to rectify the mistakes committed by him and also to influence the witnesses and tamper with the evidence. There is virtually no explanation as to why an Inquiry Officer was not appointed. Even if the first set of the charges were under investigation by the Vigilance Department, the second set of charges were different and Inquiry Officer should have been appointed to look into the same. In case, the Vigilance Department does not do anything there is nothing which prevents the domestic inquiry from being initiated and proceeded with. 9. In view of the above discussion, the following directions are issued: i) The termination order of respondent No.2 is set-aside and as such his appeal before respondent No.3 has become infructuous. ii) That respondent No.2 shall continue to remain under 6 suspension till the Inquiry Officer gives his report and therefore the appeal field by the Society before the Additional Registrar has also become infructuous. iii) That respondent No.4 i.e. Registrar, Cooperative Societies, Himachal Pradesh shall appoint an Inquiry Officer to immediately inquire into all the charges levelled against respondent No.2 in both the charge-sheets. Neither respondent No.1 nor respondent No.3 shall be appointed as Inquiry Officers. One Inquiry Officer can conduct the inquiry in respect of both the charge-sheets. The Inquiry Officer should give an opportunity to respondent No.2 and the Society to put-forth their cases and after recording evidence in accordance with law must ensure that the Inquiry Report is submitted to the Registrar (Cooperative Societies) latest by 30th April, 2012. On the basis of the Inquiry Report the Registrar(Cooperative Societies) shall take further action latest by 31st May, 2012. 10. The petition is disposed of in the aforesaid terms. No costs. September 21, 2011 (Deepak Gupta) PV Judge