C.W.P. No.7351 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.7351 of 1989 Date of Decision.28.09.2011 Kulwant Singh, Ex. Assistant Engineer, The Punjab State Cooperative Supply and Marketing Federation Ltd. (Marked), resident of House No.912, Phase VII, SAS Nagar (Mohali), District Ropar .....Petitioner Versus The State of Punjab through the Secretary to Government, Cooperation Department, Punjab, Chandigarh and another .....Respondents Present: Ms. Heena Talwar, Advocate for Mr. R.K. Chopra, Senior Advocate for the petitioner. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. 1. The petitioner's challenge is to an order of dismissal that resulted after a charge-sheet had been issued against the petitioner, finding him guilty of some financial irregularities. The petitioner was an Assistant Engineer in Punjab State Cooperative Supply and Marketing Federation (Markfed) and the imputation of the charge was on an inspection carried out by the Executive Engineer, Markfed of the repair work at various godowns under the charge of petitioner on 18.04.1991. He had observed that there was a discrepancy in the entries found in the measurement books relating to the work carried out and the actual C.W.P. No.7351 of 1989 -2- number of doors and windows that had been fixed, as also the discrepancies found in glass-panes with certain number of glass-panes as having been fixed when no work had been done. Yet another substantial allegation against the petitioner was that the quality of painting of steel and iron had been of very poor quality but entire payment had been issued. There have been clear-cut findings relating to the facts contained through the charges but the substantial contentions in the writ petition are only on issues of competence and jurisdiction of the respective officers, who had passed the orders. I will, therefore, advert in this writ petition of only the legal contentions raised in the writ petition. 2. The petitioner would contend that the conditions of service are governed by the Punjab Supply and Marketing Cooperative Service Common Cadre Rules, 1967, which were framed under the Punjab Cooperative Societies Act, 1961. Under the rules, the Administrative Committee is the competent authority for implementing the rules. The Administrative Committee again is comprised of President of Markfed as the Chairman, two members from amongst the elected Directors of the Board of Directors of Markfed and the Registrar or his nominee. The appointing authority is also the Administrative Committee and in terms of Rule 2.15, the authority which is competent to impose penalty is also the Administrative Committee. The contention in the writ petition is that the charge-sheet had been issued by the Managing Director of Markfed, who was not competent to issue the charge-sheet. Consequently, the action that resulted in the ultimate decision of dismissal also stands vitiated. The contention is taken on an express C.W.P. No.7351 of 1989 -3- averment that the Managing Director himself had not been a delegated authority by the Administrative Committee to issue the charge-sheet or to order an enquiry. 3. The petitioner would contend that the tenure of the Board of Directors had expired on 31.10.1986 as also the tenure of the Administrative Committee. No Administrative Committee was constituted in accordance with law. The Registrar of the Cooperative Society was himself appointed as an Administrator under Section 26(1) (d) of the Act but the powers of the Administrative Committee had not been delegated to the Administrator, according to the petitioner. The Enquiry Officer's report had been submitted to the Administrator, who dismissed the petitioner from service on 17.2.1987. 4. The further grievance of the petitioner is that the Administrator did not serve a show cause notice to the petitioner before taking a decision on the punishment. Referring to Rule 2.14 of the Cadre Rules, the petitioner would contend that no penalty could be imposed on any employee unless the charge-sheet on which such penalty was contemplated, had been communicated and the employee had been given a reasonable opportunity of showing cause against the action proposed to be taken. 5. The procedure followed even for disposal of the appeal is challenged by the petitioner on the ground that against a decision of the Administrative Committee, there is an appeal provided to the Board of Directors under Rule 2.17 and such an appeal had also been filed. However, since there was no Board of Directors, the Administrator himself directed the appeal to be heard. Elections to the Board of C.W.P. No.7351 of 1989 -4- Directors had not also been held and consequently, there was no Board to hear the appeal. Finding no Forum for redressing the petitioner's grievance in appeal, the petitioner had sought the intervention of the Financial Commissioner (Development) and Secretary to Government of Punjab, Department of Cooperation to hear and dispose of the appeal presented before the Board. The memorandum to the Financial Commissioner to hear the appeal appears to have been placed before the Additional Chief Secretary but he did not grant a hearing. In the meanwhile, the particular officer who was acting as an Administrator namely S. Bhagat Singh had been transferred and in his place one S.K. Nayak had been appointed as Registrar, Cooperative Societies, who took charge as the Administrator. On his appointment, the petitioner moved an application for hearing his appeal but he also did not take up the same as he was also soon transferred. The Additional Chief Secretary before whom the matter had been entrusted by the Financial Commissioner had communicated an order dated 16.08.1988 holding that the appeal was dismissed. The petitioner challenges the very order of the Additional Chief Secretary by pointing out that the order did not even contain a date and no hearing had ever been given before him. He was not himself competent to hear the appeal and he took it on his own that he had power to exercise jurisdiction under Section 69 of the Act. A power that could have been exercised only by the Board of Directors could not have been exercised by any one else. A scope for revision has been provided under Common Cadre Rules against the decision of Board of Directors to the Registrar. The petitioner, who had a right of appeal to be decided by the Appellate Authority under the Common Cadre C.W.P. No.7351 of 1989 -5- Rules, made a representation to the Chief Secretary pointing out to the illegal decision rendered by the Additional Chief Secretary without jurisdiction. The representation had been marked to the Secretary of the Cooperation Department for disposal. The Secretary was incidentally also the Administrator of Markfed appointed as such by the Registrar of Cooperative Societies. When the matter was placed before the Secretary, the petitioner contended that since decision taken by the Additional Secretary was itself a nullity as one passed without jurisdiction, the Secretary could take a decision in his capacity as an Administrator of Markfed. The Secretary showed disinclination and hence, no orders had been passed. With no effective remedy in appeal for the petitioner, the petitioner challenges the charge-sheet issued by the Managing Director as incompetent, the decision taken by the Administrator as without authority and the appeal disposed of by the Additional Secretary as equally incompetent. 6. The respondents have filed the written statement contending that the Managing Director had been competent to issue the charge- sheet since such a power had been delegated to him vide resolution dated 24/26.9.1977. Although the statement refers to a copy of the resolution as having been annexed, it is not found along with the written statement. It is stated by the respondents that the enquiry was ordered to be conducted by the then Chairman, who was the Chief Executive Officer at the relevant time. But when the enquiry Officer returned the finding that the charges had been established, there was neither the Board of Directors nor the Administrative Committee and therefore, the Administrator who was appointed with all the powers of the Committee C.W.P. No.7351 of 1989 -6- conferred upon him under Section 26(3) of the Punjab Cooperative Societies Act passed the order terminating the petitioner on the basis of findings rendered by the Enquiry Officer. The contention by the State is that since the Administrator had been appointed under Section 26(1) (d) of the Punjab Cooperative Act, he had been vested with all powers of the Board of Directors and so he was also competent to exercise the powers of the Administrative Committee. As long there was no elected Board, the powers of the Administrative Committee could always be exercised by the Administrator and therefore, the decision taken by the Administrator dismissing the petitioner must be taken as having been lawfully done in the capacity as the Board of Directors. 7. The respondents would also contend that there was no requirement under the Rules for serving a show cause notice before a punishment order is issued. All that Rule 2.14 would provide for, is to issue a show cause notice against the charge-sheet and holding of a regular departmental enquiry. As such, a notice had been sent and an enquiry had been constituted and therefore, there was no further requirement under the Rules for any other notice. 8. The respondents would admit that there was no Board of Directors since the election could not take place and therefore, the petitioner's appeal before the Financial Commissioner itself came to be decided after papers were put to Additional Chief Secretary holding the charge of the Department of Cooperation as Secretary and such decision had been taken only on the petitioner's own appeal and after suffering an adverse order, the petitioner is not competent to contend that the order passed by the Additional Secretary was invalid. C.W.P. No.7351 of 1989 -7- 9. The case presents a curious conundrum. A right to prefer an appeal guaranteed under the Rules cannot be rendered nugatory by the appellate authority being not available. In this case, the Administrator assumes several Avtars. The Administrative Committee, which shall be drawn from the Board of Directors comprising of the President, two members of the Board of Directors and the Registrar or his nominee was sought to be substituted through an Administrator under Section 23(1) (d), which Administrator substitutes the Board of Directors. An Administrative Committee, which alone is the competent authority to inflict the punishment did not admittedly exist since there was no Board of Directors. If the Board of Directors could be substituted through an Administrator lawfully appointed, the punishment by the Administrator cannot be said to be bad but an appeal cannot be defeated, for Administrator, who has decided as an Administrative Committee cannot also dispose of the appeal as an officer substituting the Board of Directors. If the petitioner's appeal had been kept in abeyance stating that it would be placed before the Board of Directors, there ought to have been specific orders issued by the Government or there should have been a provision under the Rules enabling the matter to be decided by a person, who was competent. The fact that the petitioner had made a supplication to the Financial Commissioner that his appeal was not being heard and seeking for his intervention cannot be itself taken as empowering the Additional Secretary to exercise the powers under Section 69. The powers, which are specifically constituted under the Act by a named authority cannot be usurped by an Additional Secretary and no issue of estoppel could ever arise. The statement of the C.W.P. No.7351 of 1989 -8- respondents that the petitioner's appeal before the Financial Commissioner had been directed to be heard by the Additional Secretary and therefore, he cannot complain, is legally untenable. There could not be any estoppel against law and even assuming that the petitioner had approached a wrong forum, he cannot exercise his jurisdiction which the statute did not confer to him. The order passed by the Additional Secretary was, therefore, clearly incompetent. Even if it were to be taken as issued on behalf of the Administrative Committee, the petitioner could not have been rendered without a remedy by means of an appeal. 10. The issue of whether a Managing Director had the necessary delegated authority to act on behalf of the Administrative Committee is itself not properly explained by the respondents. The written statement makes a reference to an alleged delegation through proceedings issued on 26.07.1979 but since the same has not been placed before me, I would hold that the petitioner is still entitled to insist and contend that such a power did not exist. The order passed by the Additional Secretary is set aside but I will make no adjudication on the validity of the order passed by the Administrator referred to as Annexure P-2 and the same shall be placed before the Board of Directors for disposal in accordance with law. The petitioner is at liberty to contend that the order appointing the Enquiry Officer by the Managing Director was not competent. 11. The writ petition is disposed of as above. The 1st respondent, who is the Secretary of the Cooperation Department, shall cause this order to be served to the Board of Directors for Markfed, who shall fix a C.W.P. No.7351 of 1989 -9- date of hearing and inform the petitioner within a period of four weeks from the date of receipt of copy of the order and dispose of the appeal in accordance with law. (K. KANNAN) JUDGE September 28, 2011 Pankaj*