CIVIL WRIT JURISDICTION CASE No.6151 OF 1998 In the matter of an application under Article 226 of the Constitution of India. -------------- SUKHPAL SINGH S/o Shri Kiran Singh, resident Of village Phaparna, P.S. Modi Nagar, District – Ghaziabad, U.P. ----------- Petitioner Versus 1 THE STATE OF BIHAR through the Secretary, Animal Husbandry and Fisheries Department, New Secretariat, Vikas Bhawan , Patna 2. The managing Director, Bihar State Co-operative Milk Produce Federation Limited, B9, S.K.Puri, Patna. 3. The Managing Director, Vaishal – Paltilipura Dugdh Utpadak Sahkari Sangh, Limited, B9 S.K. Puri, Patna. 4. Shri Amir Subhani, Managing Director, Member of Bihar State Co-operative Milk Produce Federation LTD COMPFED P.O. Bihar vetenary College, Patna 5. The Bihar State Co-operative Milk Produces Federation through its Managing Director, Bihar Vetenary College, Patna.--- Respondents --------------- For The Petitioner : M/S. BBAMDEO PADNEY ,ANSHUMAN, ADVOCATES For The Respondent : G. P 4 For the respondents 2 to5: MR. RAJESH KUMAR CHOUDHARY,ADVOCATE ------------------- P R E S E N T THE HON'BLE MR.JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J. Petitioner is aggrieved by the order of termination dated 22.11.1994 contained in annexure-3 as well as the order passed by the appellate authority confirming the order of punishment which is dated 13.5.1998 and is contained in annexure-1 to the writ application. By virtue of both the orders the petitioner was given three months pay in lieu of notice before terminating his services as would be evident from annexue-2 to the writ application. He therefore wants quashing of both the annexures 1 and 3. - 2 - The background to the present litigation is that the petitioner applied for the post of Manager (Procurement and Input) under Tirhut (Paltiputra Dugdh Utpadak Sahkarita Sangh) pursuant to the advertisement issued in this regard. He was however appointed on the post of Deputy Manager (Procurement and Input) in terms of the order dated 20.1.1998 contained in annexure-4. Petitioner was put on probation. Other terms and conditions of appointment may not be noticed in this part of the order, the details of which is contained in annexure-4 itself. It seems that before completion of the period of probation petitioner was terminated from service because his performance was not found satisfactory. But an offer was made to him to accept the lower post of Milk Procurement Officer which the petitioner seems to have accepted and he came to be appointed on the post as such. This was after throwing a challenge to the order of termination by filing a writ application before the High Court which was dismissed. Petitioner worked on the post after appointment for a while but it seems that the respondents were not satisfied with his service and performance and even imposed a few minor punishments here and there. The society, in fact, had one time even threatened to return his services to the Milk Federation since his working was found to be quite unsatisfactory. Sometime in April, 1994 a show cause was issued to the petitioner. On the reply not being found satisfactory a decision was taken to issue a chargesheet to the petitioner. Four charges were brought against him. The enquiry was held but the petitioner did not participate fully in the matter. It is urged on behalf of the petitioner that since the - 3 - enquiry was being held at Patna and he was posted at Siwan he had problem more so when the salary was not being paid to him by the respondents during that period for one reason or the other. Ultimately the enquiry was conducted ex-parte and a report submitted holding the petitioner guilty. A second show cause thereafter came to be issued and based on the reply of the petitioner the disciplinary authority decided to award punishment which was removal from service by payment of three months salary in lieu of notice. The order in question is contained in annexure-3. The appeal filed by the petitioner before the appellate authority was considered and for the reasons indicated in the order the appellate authority did not interfere with the order in question. The appellate order dated 13.5.1998 is annexure-1 to the writ application. It has been urged by learned counsel that the petitioner was not given a fair opportunity to defend himself in the enquiry held against him. He was not even paid his salary and paucity of money prevented him from effectively participating in the enquiry which is a breach of natural justice and that the punishment of termination by payment of three months salary in lieu of notice cannot be imposed upon him. It is further urged that the appellate authority has also not considered his appeal in true prospective, therefore he has not been given justice in the matter. A detailed counter affidavit has been filed by the respondents and they have given the background which led to passing of the impugned orders. They categorically alleged that the petitioner was initially given higher post and responsibility when he entered the - 4 - organization. His performance not being up to the mark during the period of probation itself forced the hands of the authority to terminate him but, out of compassion, the petitioner was given yet another appointment on a lower post of Milk Procurement Officer. This offer of appointment was readily accepted by him and his earlier effort to challenge the order of termination did not find favour with the high Court. But even on the post of Procurement Officer the petitioner’s conduct and performance for the Cooperative Society was highly unsatisfactory. In fact, the society made losses in procurement of milk, its transportation and distribution. The Court is not willing to go into all the details of what has been alleged against the petitioner but sum essence of the averments are that the respondents being a cooperative society cannot afford to keep such an employee who became a liability to the society instead of helping the organization beget good returns for its members. The conduct of the petitioner and his performance coupled with certain omission and commission had come to the notice of the authority which compelled them to hold an enquiry. Petitioner was charged and all the materials which the enquiry officer wanted to rely on were supplied to him but he intentionally chose not to participate and co-operate in the enquiry. His endeavor or intent was to delay the enquiry on one frivolous ground or the other. The enquiry officer was left with no option but to proceed in the matter and give his finding. The findings having gone against the petitioner, he was given an opportunity by issuing a second show cause and thereafter the disciplinary authority in its wisdom instead of putting a - 5 - kind of stigma by imposing order of punishment based on the findings decided to invoke the power of giving either three months salary or three months notice in lieu of salary before removing him from the post. In fact, the respondents could have invoked this power even without holding an enquiry but even then they in their wisdom wanted to give a final opportunity to the petitioner to explain himself on the set of charges which was drawn against him. In view of the totality of the situation the authority decided to part with the petitioner by paying him three months salary in lieu of notice. They further state that a bare perusal of the order passed by the appellate authority contained in annexure-1 would show that the matter was considered in its entirety and every aspect or point raised by the petitioner in his appeal has been taken note of. The appellate order is a detailed order and no fault can be found in it. The question therefore falls for this Court to consider whether there is occasion to interfere with the order of removal or the order passed in appeal. The Court does not have to delve too deep on the issue but the records and the pleadings of the case clearly establish a basic fact that at no point of time right from the initial appointment till the period the petitioner had spent in service, he proved himself to be useful to the organization. The fact that the petitioner had been reverted from the initial post and he accepted lower post as a fresh appointment is an indication that the petitioner did not find himself up to mark to shoulder the responsibility of the higher post. Even on this post there has been large scale absence and failure on the part of petitioner to upkeep the - 6 - equipments and perform his duty to meet the basic object of the society of procuring milk from the milk producers and reaching its destination has not been achieved by the petitioner. If the co-operative society therefore was of a considered opinion that the utility of the petitioner to the organization was proving to be detrimental to the interest of the society then they have done no wrong by giving three months pay to the petitioner in lieu of notice which power the respondents had/have and is not in dispute. It was also open to the respondents to pass any order of punishment based on the enquiry report and the findings but then probably they took a milder view and allowed an easy exist for the petitioner instead of imposing punishment which would have marred his future employment prospects. The Court therefore is of the considered opinion that there is no occasion to interfere with the impugned orders because there is no infirmity of the kind pleaded by the petitioner which would compel this Court to accept his plea. This writ application has no merit and is accordingly dismissed. (Ajay Kumar Tripathi, J.) PATNA HIGH COURT, PATNA DATED THE 21st October, 2008 NAFR/RPS/Sr. Secy.