IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No. 14234 of 2004 Date of decision: September 10, 2010 The Mohie Janta Cooperative Agricultural Service Society Limited, Mohie .. Petitioner Vs. State of Punjab and others .. Respondents Coram: Hon'ble Mr. Justice M.M. Kumar Hon'ble Mr. Justice A.N. Jindal Present: Mr. D.V. Sharma, Sr. Advocate with Ms. Mamta Rani, Advocate for the petitioner. Mr. Suvir Sehgal, Addl. A.G. Punjab for the respondents No.1 to 5. Ms. Jagdeep Bains, Advocate for the respondent No.6. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the digest? A.N. Jindal, J This civil writ petition under Article 226 of the Constitution of India has been preferred to challenge the vires of Rule 28 of the Punjab Cooperative Societies Rules, 1963 (for brevity, '1963 Rules') and also the Punjab State Cooperative Agricultural Service Societies Service Rules 1997 (Annexure P-15) and the order passed by the respondent Nos. 3 to 5 to be illegal. Charanjit Singh respondent was appointed as Peon-cum- Chowkidar by the Managing Committee of the Punjab Agricultural Services Society, Mohie. Kamaljit Singh was working as Salesman in the said society who expired on 8.2.1996 and was then replaced by Charanjit Singh respondent No.6 (herein referred as 'the respondent No.6'). However, on appointment of Harkaran Singh as Salesman on compassionate grounds, on account of the death of Kamaljit Singh, the respondent No.6 ceased to be the Salesman of the society. Since there was no Chowkidar for undertaking night duties, therefore, respondent No.6 was deputed to work as Peon-cum- Chowkidar along with Bhag Singh Peon already appointed in the society. Civil Writ Petition No. 14234 of 2004 -2- Thereafter, vide resolution dated 9.5.2000, he was asked to perform night duties alternatively with Bhag Singh. On refusal made by the respondent No.6 to work as Peon-cum- Chowkidar, he was imputed with misconduct and was condemned for committing disobedience. Later on, he apologized for his misbehaviour vide communication dated 12.5.1999 and 3.6.1999. Subsequently, 21 bags of cement were found short in the stock of the respondent No.6 about which he undertook to deposit the costs of bags on 30.9.1999. The respondent No.6 again misbehaved with the Secretary of the Society for which he apologized on 5.10.1999. However, the society issued the charge sheet/ show cause notice dated 15.5.2000. The Managing Committee of the Society vide resolution dated 3.7.2000 constituted an Enquiry Committee who after recording the evidence indicted the respondent No.6. The Managing Committee after considering the enquiry report gave notice to the respondent No.6. The respondent No.6 filed reply and ultimately vide resolution dated 4.9.2000 (Annexure P-9) his services were terminated. The appeal preferred by him before the Deputy Registrar, Cooperative Societies, Ludhiana was accepted vide order dated 28.3.2003 (Annexure P-10) and he was ordered to be reinstated but without back wages. Against the aforesaid order, both the respondent No.6 as well as the Society-petitioner preferred two revision petitions. However the Joint Registrar, Cooperative Society, Patiala dismissed both the revision petitions vide separate orders. In the revision petition filed by the society which was dismissed vide order dated 15.3.2004, it was observed that three salesmen were working against the required strength of two and it was ordered that the services of the junior most salesman should be retrenched. In the revision petition preferred by the respondent No.6, the Joint Registrar modified the order stating that the minor punishment of one annual increment with cumulative effect was sufficient. Against the orders of the Joint Registrar, Cooperative Societies, Patiala, two petitions were preferred under Section 16 of the Act before the Registrar Cooperative Societies, Punjab, Chandigarh who vide order dated 28.7.2004, dismissed the revision petition preferred by the society, whereas, the revision petition filed by the respondent No.6 was allowed and he was ordered to be reinstated in service with full back wages. Civil Writ Petition No. 14234 of 2004 -3- The learned counsel for the petitioner has challenged the vires of the Rule 28 of 1963 Rules on the ground that as per sub- section (1) and (2) of Section 85 of the Punjab Cooperative Societies Act, 1961, the State Government could frame the rules with regard to the qualifications and conditions of service and there is no specific power to delegate its power to Registrar for the said purpose and assuming for the sake of arguments if the Government validly delegated the powers to the Registrar to frame the Rules for laying down the qualifications and conditions of the service of the employee of the Cooperative Society then the rules are ultra virus for the reason that proper procedure as provided under Section 85 (3) of the Act has not been followed by the Registrar, Cooperative Societies, Punjab, Chandigarh for laying down these rules before the State Legislature within 10 days of their formulation but the needful was not done. It was further urged that the Registrar cannot adjudicate upon the service matters in view of Section 55 and 56 of the Act, therefore, the Registrar cannot assume the jurisdiction upon his subordinates to decide the matter and exercise powers which have not been specifically conferred by the State Legislature upon him. It was also contended that the Deputy Registrar, Cooperative Societies, Ludhiana, Joint Registrar, Cooperative Societies, Patiala and Registrar, Cooperative Societies, Punjab, Chandigarh were not competent to hear the appeal or the revision whatsoever. Even otherwise, the orders are not speaking one and are without reasons. The aforesaid contentions, raised by the learned counsel for the petitioner in the writ petition, have altogether been denied by the respondents. The respondent No.6 filed reply to the objection raised with regard to the jurisdiction in the manner that the society had conceded and subjected itself to the jurisdiction of Joint Registrar, Cooperative Societies, Patiala filed the revision petition under Rule 15 (2) of the same service rules but it has, in para Nos.4 and 5 of the revision petition categorically admitted to the prevalence of the same service rules and these are applicable to the society. Now it does not lie in the mouth of the society to say that the revision petitions were not maintainable before the Registrar Cooperative Society, Punjab, Chandigarh. With regard to the validity of the Rule 28 in context to the provisions of Section 85 (XXXVIII) of the Act being without jurisdiction, it Civil Writ Petition No. 14234 of 2004 -4- was submitted that vide notification No.GSR 79/P.A. 25/61/S 85/Ad. (5)/69 dated 14.10.1969, the Governor of Punjab exercising its powers conferred under Section 85 of the Punjab Cooperative Societies Act 1961 and rule 28 of Rules 1963, under which power to frame the service rules of the employees of the society has been conferred upon the Registrar, framed the rules. It was also added that . The Division Bench of this Court in case Bakshish Singh and others vs. The Registrar, Co-operative Societies Punjab, Chandigarh and others, AIR 1984 P & H 264, had upheld the validity of Section 28 of the Rules and it was also observed that non laying of rule before the legislature would not invalidate such delegated legislation. As regards the validity of the orders, he gave much stress upon the competency of the authorities to pass such orders. On merits, it was submitted that the society admitted him to be the salesman and he could not be expected to perform the duty as Chowkidar, nor such direction could be issued to him. No proper enquiry was held, no show cause notice was issued to him and the enquiry, if any, was conducted in violation of the service rules. It was further contended that he never refused to comply with the orders of the authorities and he also did not beg any pardon. Actually, the cut short procedure has been adopted to oust him from the job. The other respondents also denied all the allegations. Arguments heard. Record perused. Admittedly, the respondent No.6 was working as Peon-cum- chowkidar since the year 1995 and he was promoted as salesman in the year 1996 on the death of Kamaljit Singh. The problem started after one Harkaran Singh was appointed as salesman on compassionate grounds. The respondent No.6 was levelled the allegations of disobedience. However, apology was sought from him on 12.5.1999 and 3.6.1999 respectively. Later on, he was charged for shortage of 21 bags of cement. He had replied to the charge sheet and the matter was referred to the Enquiry Committee. No report of the Enquiry Committee has been placed on file. No evidence has been brought on record to show if the Enquiry Committee followed the proper procedure as provided under the law before imparting penalty upon the petitioner. As regards delegation of powers, Section 85 (1) and (xxxviii) of the Act reads as under :- Civil Writ Petition No. 14234 of 2004 -5- “85 (1) The Government may, for any cooperative society or class of such societies make rules to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :- (xxxviii) qualification for members of the committee and employees of a society or class of societies and the conditions of service subject to which person may be employed by societies. (3) xx xx xx While exercising the powers under the aforesaid clause, Rule 28 of 1963 Rules, Government conferred power upon the Registrar to frame rules with regard to qualifications and conditions of service of its employees. Rule 28 of the 1963 Rules reads as under :- “28. Qualifications and conditions of service of employees. (1) The qualifications and conditions of service subject to which any person may be employed by a cooperative society or a class of cooperative societies shall be such as may be determined by the Registrar from time to time. (2) Where the Registrar is of the opinion that it is necessary or expedient so to do, he may by order, for reasons to be recorded in writing relax the provisions of this rule with respect to any cooperative society or class of cooperative societies to such extent as he may consider proper.” The Registrar Co-operative Societies was also empowered to conduct the business in connection with the service conditions of the employees as per Rules 45 and 81 of the Rules of 1963. The said Rules are in the following terms:- Civil Writ Petition No. 14234 of 2004 -6- “45. Directives by Registrar for the successful conduct of the business :- The Registrar may from time to time, issue such directives as he considers necessary for the successful conduct of the business of a co-operative society or class of co-operative societies.” 81. Repeal :- The Punjab Co-operative Societies Rules, 1956, are hereby repealed:- Provided that any action taken, order issued, by-law made under the provisions of the rules hereby repealed shall, in so far as it is not inconsistent with the provisions of these rules, be deemed to have been taken or made under the provisions of these rules.” The other question raised before us is that the laying of the Rules before the Legislature for their proper enforcement was mandatory, but this argument cannot hold water, for the reason that no such material has been brought on record that these rules were not laid before the Legislature. In any case, no such Rule has been made pointing towards the consequences of non-laying of the Rules before the Legislature. Similar question arose before the Full Bench of this High Court in case of M/s Megha Singh and Co. and others vs. The State of Punjab and others, AIR 1977 Punjab & Haryana 297, wherein, it was observed as under:- “21. Perhaps the question of parliamentary control of the executive is also largely a political question, in that it is for the Legislature to admonish or punish the erring Ministers and not for the judiciary to invalidate the subordinate legislation on the ground of `non-laying'. The judiciary may enter the picture only if the Legislature prescribes the consequence of non- laying and not otherwise. Whatever it is, we are bound by the decision of the Supreme Court wherever our own personal inclinations are likely to lead us. 22. In the light of the foregoing discussion, we may be Civil Writ Petition No. 14234 of 2004 -7- unable to hold that the `non-laying' of the rules before the Legislature invalidated the rules.” Though, the publication of the Rules has been made mandatory, but it is not mandatory in view of the judgment delivered by the Division Bench of this High Court in case of Darshan Lal vs. State of Haryana, 1999(2) Services Cases Today 303, wherein, it was observed as under:- “12. In our opinion, neither of these submissions merit acceptance or our approval. Admittedly, DRDA, Hisar is a society registered under the Societies Registration Act, 1860. Its constitution does not envisage publication in the official gazette of the rules framed/adopted by it. Therefore, the mere factum of adoption of the 1991 Rules by DRDA, Hisar is sufficient to make them binding on its officers and any action taken in violation of these rules will have to be treated as nullity. The respondents cannot plead that even though the 1991 Rules have been adopted by DRDA, its officers have the liberty to act in violation thereof without the consequence of invalidation of their action/decision. In our considered opinion DRDA, Hisar and its officers are duty bound to act in consonance with the 1991 Rules and any act done in violation thereof affecting public interest will surely entail the consequence of invalidation of the same. 13. In Ramana Dayaram Sheetty v. The International Airport Authority of India and others, AIR 1979 Supreme Court 1628, a three Judges Bench of the Supreme Court observed that an executive authority must be rigorously held to be standards by which it professes its action to be judged and it must scrupulously observe those standards on pain of invalidation of an action done in violation of them. Their Lordships approved the following ratio of the decision of Vitarelli v. Seaton (1959) 359 US 535 : “An executive agency must be rigorously held to the standards by which it professes its action to be judged .............. Accordingly, if dismissal from employment is based on a defined procedure even though Civil Writ Petition No. 14234 of 2004 -8- generous beyond the requirements that bind such agency, that procedure must be scrupulously observed .... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.” In B.S. Minhas v. Indial Statistical Institute and others, AIR 1984 Supreme Court 363, their Lordships examined challenge to the appointment of the Director of Indian Statistical Institute. One of the grounds on which the appointment was challenged was the violation of bye-law 2 framed by the respondent-Institute. Bye-law 2 required that before appointment, the vacancy in the post of Director should be suitably publicised. It was urged on behalf of the Institute that the violation of the bye-law 2 was inconsequential. The three Judges Bench of the Supreme Court rejected the contention and reiterated the principle of law laid down in Ramana Dayaram Shetty case (supra). Their Lordships quashed the appointment of the Director on the ground of non- publication of the vacancy in accordance with bye-law 2. In view of these decisions, it must be treated as settled provision of law that every public authority must act in accordance with the rules, regulations and bye laws framed or adopted by it for the purpose of regulating its business and actions, more so, when its action and decisions affect the members of public or relate to public interest. 14. The argument of Shri Patwalia that the breach of the 1991 Rules should be equated with breach of administrative guide-lines and, therefore, the appointment of respondent No.5 should not be invalidated on the ground that respondent No.4 was not authorised to make appointment on the post of Assistant Project Officer, does not commend our acceptance. At the cost of repetition, we consider it appropriate to observe that respondent-DRDA, Hisar had adopted the draft rules framed by the government and, therefore, it is bound to act in accordance with those rules and mere non publication of the Civil Writ Petition No. 14234 of 2004 -9- rules in the official gazette cannot entitle respondent No.5 to plead that the flagrant breach of Rule 3.6 of the 1991 Rules should be treated as inconsequential.” In the instant case also, petitioner has not placed on record any data to show that these rules were not placed before the legislature. As such, while applying the obiter dicta from the aforesaid judgment, it could safely be determined that no fault could be found with the rules when the same were circulated and adopted by the societies through out the State of Punjab. As regards the procedure to be adopted before imposing the penalty for dismissal from service is governed by 14 (3) of the Rules. According to these rules, the punishing authority was bound to initiate enquiry proceedings after giving reasonable opportunity to the delinquent to represent his case. But, admittedly, no such notice has been given to him and he appears to have not been associated during the enquiry proceedings. As regards the competency of the revision petition, in order to challenge the order of penalty, Section 15 of the Rules is reproduced as under :- “Appeal: 1. An employee shall have a right to file an appeal against an order imposing any of the penalties specified in Rule 14 before the Deputy Registrar, Coop. Societies, within 60 days. 2. A revision petition can be filed against the order of Deputy Registrar within 60 days of the date of the order before the Joint Registrar, Cooperative Societies of the Division whose decision shall be final, binding and conclusive.' Thus, on bare perusal of the aforesaid rule, it transpires that it provids a remedy by way of revision before the Joint Registrar, Cooperative Societies which was availed off by the respondent No.6 who upheld his reinstatement but without back wages. Nevertheless, Mr. D.V. Sharma Civil Writ Petition No. 14234 of 2004 -10- learned Senior counsel has placed his view point that Registrar had no power of revision. However, before determining the competency of Registrar to hear the revision, it would be essential to reproduce the powers as provided under Section 69 of the Punjab Cooperative Societies Act have been invoked not only by the respondent No.6, but by both the parties. The said section reads as under :- “69. The State Government and the Registrar may, suo moto or on the application of the party to a reference, call for and examine the record of any proceedings in which no appeal under Section 68 lies to the Government or the Registrar, as the case may be, for the purpose of satisfying itself or himself as to the legality or propriety of any decision or order passed and if in any case it appears to the Government or the Registrar that any such decision or order should be modified, annulled or revised, the Government or the Registrar, as the case may be, may, after giving persons affected thereby an opportunity of being heard, pass such order thereon as it or he may deem fit.” Section 69 of the Act refers to the powers of revision against orders or proceedings arising out of the matters or dispute under the Act, whereas, since the revision had arisen out of the disciplinary proceedings and not under the act and the rules provide for a separate hierarchy of the courts for hearing the grievances of its employees with regard to the matters pertaining to their discipline, conduct and conditions of service, therefore, such orders are not amenable to the revision by the Government or the Registrar, consequently, the invocation of revisional jurisdiction by both the parties would not in any way confer powers or jurisdiction over the Registrar to hear the revision. As such the revision against the order of Joint Registrar before the Registrar was not maintainable in view of the judgment delivered by Division Bench of this Court in case Sukhwant Singh v. Deputy Registrar (Enforcement), Cooperative Societies, Punjab and another, L.P.A. No.1230 of 2009, decided on 15.7.2009. Civil Writ Petition No. 14234 of 2004 -11- In any case, if orders passed by the Registrar are ignored even then the orders passed by the Joint Registrar which uphold his reinstatement but without back wages being without any defect, irregularity or illegality, are bound to attain finality and we order accordingly. In the wake of aforesaid discussion, the instant petition fails and the same is dismissed. (M.M. Kumar) (A.N. Jindal) Judge Judge September 10, 2010 deepak