89 CWP No631 of 2009 1 IN THE HIGH COURT OF PUNJAB 8 HARYANA CHANDIGARH CWP No631 of 2009 Date of decision Februraryl 2010 Piara Singh Petitioner Versus SecretaryCooperationIAppealslPunjabMinimSecretariat Sector 9 Chandigarh and others m r Respondents 0 CORAMl HONBLE MRJUSTICE I KANNAN 0 Present Mr 3edi Advocate C for the petitioner I Mr Anil Kumar Sharma Additional Advocate General Punjabfor Z respondentNosl to 3 Mr Rakesh Verma Advocate C for respondentNo S eklklt1e I K KannanJ 08 1 Subiects of chalienqe in writ petitionl 1 A peon in a Cooperative AgriculturalSocietyBank W Z who had been chargedwith connivancewith the Secretaryof the Societyin Qe causingembezzlement of funds of the Societywas ordered to be terminatedfrom service bythe Board of Directorsafter securingpermission from the RegistrarHe preferred an appealagainstthe decision of the DeputyRegistrar which was dismissed on 292006 and a revisionfiled to the Rulel5 ofthe Service Rules alsofailed bythe decisiondated 30 2007 By his order dated 302007 he directed a freshenquinlto be conducted after givingfull opportunity to the petitioner noting the fact that the terminationhad been eHected without any form of enquiry or without offeringto the petitionerany opponunityto tender evidence A revision to the Secretaryunder Section 69 of the Cooperative SocietiesAct was filed aguinstthe direction for a fresh enquiry The 1N1J Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 90 0 CWP No631 of 2009 2 Secretary passedan order which was more pre judicialto the petitionerby settingaside the order in revision and the order of the Managing Committeeand the DeputyRegistrar 2 The petitionerwho is dismissed from the Society challenges the order passedbythe Secretary on 82008 on the groundthat it was without and in excess of authoritywhen 1 even without any cross appealorrevision from the Societythe Secretary had set aside the order of the Revisional Authoritynamelythe Joint 0 Registrarand inOictedon the petitioner a graver punishment when the Joint C I Registrar had onlyordered a fresh enquiryto be conducted The petitioner 0 also challengesall the initialorders bythe ManagingCommitteeas well as I the order of appealin the writ petition Z Il Contentions in defence bv respondentsl C 3 The contentionin defence on behalf of the Society I and for the State is that the petitioneris guiltyof suppressionof imponant 08 fact that subsequentto the decision of the Joint Registrardirectinga fresh 00 enquiry to be conducted in his order dated 3072007 the enquiryhad been 7 Z undertaken by the Assistant Registrarwho after enquiringthe witnesses tl found the imputationof misconduct attributedto the petitionerto be true and returned a findingof guiltagainstthe petitionerHe had agreedwith thefindingof the Inspectorwho had originallyconducted the enquiry The writ petitionfiled without makingreferenceto what happenedsubsequent to the order of the Joint Registrar was deliberatelymisleadingaccordingto the respondentst was the further contention of the respondentsthat againstthe order of the Assistant Registrarthat was ultimatelypassedon 26112007 there was a provisionfor an appealunder the Punjab Societies Act and a challengeto the decision made by the SecretaryCooperationwas and havingbeen filed without the alternativeremedythe writ petition was bound to fail V Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 0 91 0 9 1 CWP No631 of 2009 3 Ill Basis of charge aqainst petitionerl 4 The petitionerscontentionhad been that for some misconduct of the Secretaryof the Societyan enquiryhad been constitutedthat resulted in the Ondingof guiltof the Secretaryand he was also terminatedfrom service He had not in any way been associated with the Secretaryin the allegedfraud and the chargesIevelled againsthim 1 namelyil that underthreats and duress he obtained pass books and r chequebooks from the membersiilthat he remainedabsent after 32004 0 0 and iiil that he was not takinginterestin theworkingof the Societywere all I not true It could be noticed at the outset that the allegation 0 that he was not takinginterest in the workingof the Societywas too vague that could ill sustain the basis for a charge for any action 1 therefore Z proceedto examine onlythe first two chargesnamelyof securingpass 0 books and chequebooks and threatsand duress and that the allegations I that he had been remaining absent after 52004 had been established or 08 not 4r IV From the staqe of charqesheet till order of 2 removal no enquirvwas conductedl Z 5 There is no denial of the fact that after an enquiry Om officer had been appointedwhen after the chargesheet was served no enquiryhad been conducted It is also an admitted fact that after an InspectorSewa Singhwas appointedas an enquiryofficer he held an enquiryand gave reportto the Assistant Registrarthat none of the charges had been provedagainsthim The Assistant RegistrardiHered from the reportand had appointedyetanother InspectorJagtarSinghas an enquiry Officer and called for a reponfrom him It appears that second enquiry officer JagtarSinghhad givena reporton 11 004 findingthe petitioner guilty of the charges even without affordingto the petitionerany opportunityof personalhearingand without producingany evidence lviJ Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 92 0 1 CWP N 2631 of 2009 4 againstthe petitioneregardingthe allegedmisconduct The enquiry oftlcer was reportedto have sent the details of the reponto the Managing Committee which had taken a decision in a meetingon 9 112005 regarding the fact that the petitionerhad been keptunder suspensionfrom 16 12004 and when a show cause notice had been givenagainstthe reportof the enquiryofficer he had givenreplybut it was not satisfactory Under such circumstances the ManagingCommittee had decided to r terminate the services to which the Joint RegistrarPatiala had given 0 0 approvalbyhis dated 141 12005 I 6 It could be noticed from the beginningto the C9 culmination of the order of dismissal by the ManagingCommittee there I had been no attemptby the Societyto Iet the petitionerparticipate in the Z r enquiryand prove the chargesagainsthim While the OrstInspectorwho 2 Ct had been appointedas an enquiryoffice had found that there were no I materialsfor the chargesthe second omcer who had been appointedby 08 the Assistant Registrarhad found the petitioner guiltywithout any form of ClO evidence The reportof theenquiryomcer itselfis not puton record but the aw Z resolutionof the ManagingCommitteedated C11 2005 refers to the fact 3 Il that enquiryreporthad been submittedby the InspectorJagtarSinghand without even disclosinghow the chargeshad been established or even discussing the objectionsstated by the petitionerit had merelyobserved that the explanation was not and therefore the petitioner was Iiablefor removal V Mode of disposal bv AppellateAuthoritv undesirablOiRevisionalAuthoritv directs 1 de novo enquirv 7 The manner of disposalby theAppellateAuthority DeputyRegistrarwas even worse It states Iaconicallythat the ex Secretaryhad committed embezzlement of several Iakhs of rupees and the petitionerhad cooperatedwithhim in the embezzlement What form of I Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 93 12 CWP Noe2631 of 2009 5 cooperation was rendered by him or how there had been connivance or conspiracyfor such embezzlement was not cited anywherein that order The fact that there was no enquirybefore the enquiryomcer JagtarSingh that no had been givento defend himself and that no witnesses had been broughtby the Societyto prove the chargeswere all set forth in the order of the Joint Registrarwhen he was dealingas a 1 1VISIOn officer entertaining the case againstthe decision of the Managing Q Committee and the DeputyRegistrarIt was tlnder those circumstances 0 C3 that the Revisional Authoritypassedan order on 302007 that he was I inclinedto concur with the contentionsof the petitioner that there had been C5 a gross violation of statutoryrules which providedinter alia under RuIe 14 I of the PunjabState CooperativeAgriculturalService Societies Rules of Z 1997 that the enquirycould be conducted only after giving a due 7 opportunityto the delinquentand the PresentingOHicer provingthe I chargesby placingappropriate evidence The Revisional authoritynamely 06 Joint Registrar was furtherconstrained under such circumstancesto order ClO a de novo enquiry m Z Vl Further revision to Secretaryto Government can not result in graver result in the absence of challengebySocietyl 8 While the petitionerhas merelyreferredto filinga further revision to the SecretaryCooperationunder Section 69 the respondentplacedon record the reportallegedto have been preparedby the Assistant Registraron 2l l 007 concurring with the findingof guiltby the second InspectorThis enquiryrepondated 267112007 is strangein more ways than one In the order of the Joint Registrar dated 302007 apai1from statingthat a de novo enquirywas to be conducted and all the disciplinaryproceedingswould be conducted within three months he had himself not set out as to how the enquiryshould be conducted If there was a de novo to the firstauthoritynamelythe Assistant Registrarthen it is 11 Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 94 T 0 t CWP No631 of 2009 6 not seen how he got the enquirygoingwithout invitingthe petitionerto participate in the proceedingsThe enquiryreportreveals that when a noticehad been issued to the petitioner for appearance on 1L1 12007 he hadgivena statementthat he had preferred a revisionunder Section 69 of the Punjab Bank to the SecretaryCooperationPunjaband thattherefore he shall not be in a positionto joinwith the enquiry At that 1 stagethe Assistant Registrarshould have either stayedhis own or he oughtto have taken instructions from the Secretary 0 whether he could continue with the enquiryalthoughrevision had been Cao I before him The enquiryreponof the Assistant Registrarreveals CAO that on a futlher date on 21 12007 the Secretaryof the Societyhad come presentalongwith records of the Societybut the petitioner was not Z present It is not seen from the enquiryreportwhether the date of hearing m2 had been informed to the petitionerAssumingthat the petitioner had I known it could only be understood from his statement at the previous 06 hearingon 14112007 that since he was pursuing a funher revisional oo before the Secretary he had not come presentbefore the 7 Z Assistant RegistrarNo order settingthe petitionereoarte appears to Il have beenpassed The Assistant Registrarappears to have examined several witnesses namelySlSh3anta SinghNiku Ram Ram Nath and othersto state thatthe petitioner had visited them at their residences and collectedthe pass books and chequebooks under threats and entered false entries as thoughIoans had been givento them The whole had gone in the absence of the petitioner If the Assistant Registrarhad givena reporton 26112007 that he was confirmingthe decisionof the first enquiryofficer the decision to terminate the services itselfcould emanate only from the ManagingCommittee The Assistant himself had no power to terminatethe setvices Even theenquiry repoi1 dated 261 1 007 does not spellout any punishment and the report lvL Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 95 SPO CWP No631 of 2009 7 of the Assistant Registrarmust be taken as a result of a direction by the Joint Registrarin his order in revision dated 30 2 007 for a de novo enquiry all the previousorders would only be seen as havingbeen set aside and a fresh process of disciplinary should be deemed to have begun Vll Simultaneous decision of Assistant Reqistrar when Secretarvto State was also in seisin IS 1 untenable C 9 If the enquiry reporlof the Assistant Registrar 0 0 itself cannot be taken as any punishmentthen the issue is whether the 1 I SecretaryPunjabGovernment could have passedan order on 82008 C5 I settingaside the order of the Joint Registrar on 372007 and restoredthe order of removal affirmed bythe DeputyRegistrar The order of the Joint Z Registrar had not been challenged bythe Societyitself Onlythe petitioner C had challenged it before the Secretaryand a decision by the Secretary 1 could have therefore been either to affirm the decision of the Joint 08 Registrar in which case the enquiryshould have proceededfuither de ao novo or he could have it set aside Ifthe order of the Joint Registrarhad 3 Z beenset aside the contentionof thepetitionerthat there was no scope for a thirdenquirywhen two enquirieshad alreadybeen constitutedmust have been accepted The first enquiryrevealed that no chargeshad been established and the second enquirywhich had givena reportwithout recording any evidence or givingany opportunity to the petitioner to explain his defence or securingany proofof guiltof the petitionerAn appellantor a revislon peUUoner cannot be in a worse off situationchallenging an order dated 3012007 and be restoredto the situationof his guiltas havingbeen established when the Joint Registrar had originallyheld that there was no properenquiryat aii It does not seem how the Secretaryfound that the enquiryhad been properlyconducted and that he had upheldthe l4 Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 96 1 r CWP No631 of 2009 8 Vlll Present Dispositionl 10 The order of the Secretary dated 82008 cannot standfor judicialscrutiny and it is bound to be quashedIf the order of the SecretaryCooperationcannot be upheldthe reportof the Assistant Registrardated 21 1 007 cannot also be supportedfor the whole have gone on unabated even when there was a revision 1 pendingbefore the SecretaryThe witnesses have been examined without givingany opponunityto the petitioner to cross examine them The 0 0 petitioner could have been surelymisled into believing that the pendencyof I 0 the revision before the Secretarywould not make possiblean enquiry I before the Assistant Registraralso The order of the enquiryomcer Assistant Registrarlwas not even carried to its Iogicalend and till date Z m there appears to be no order pursuantto the So called de novo enquiry Q undertakenbythe Assistant RegistrarThe order of the Assistant Registrar I dated261 12007 is also set aside The petitionerhad been keptout of 06 setvice from the date of his suspension on 161 2004There is no valid 02 order of terminationand the petitioner is entitledto be reinstated inservICS e Z It is seen from the records that not even subsistence allowance was given Qm duringthe period of suspensiontill he was purportedto have been terminatedfrom service on 911 2005 by the decision of the Managing Committee The petitionershall be paidhis full wages and reinstated in service 11 The respondents are at IibeIlyto beginthe enquiry afresh in the manner directed by the Joint Registrarin his order dated 302007 within a periodof two months but it shall not commence without payingthe petitionerhis full back wages for the entire periodwhen he has been keptout of employmentThe petitionershall have full and adequate opportunity to cross examine the witnesses The petitionershall also be paidhis fuil wages till the conclusion of enquiryand a Onal decision is taken Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 97 CWP No631 of 2009 9 bythe authority 12 The writ petitionis allowed with the above directions The petitioneris also entitledto costs assessed at Rsl O0001 againstthe respondents K KANNANI JUDGE 19 2010 archana 1 Ct 0 I 0651 9 I e 1 Z C I 08 Q0 e Z ne Suresh Kumar 2014.03.05 10: 23 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document