THE BADDOWAL COOPERATIVE AGRICULTURAL SERVICE SOCIETY LTD. Vs. THE JOINT REGISTRAR, COOPERATIVE SOCIETIES, PATIALA AND OTHERS

JUDGEMENT

(1.) In this writ petition under Articles 226/227 of the Constitution of India, the petitioner has challenged the order (Annexure P-6) dated 18.10.2004 and order (Annexure P-7) dated 5.11.2004. The petitioner is a Cooperative Society. The service conditions of employees are governed by the Punjab State Cooperative Agricultural Service Societies Service Rules, 1997 (hereinafter referred to as "the 1986 Rules"). The rules have been framed by the Registrar, Cooperative Societies under Rule 28 of the Punjab Cooperative Societies Rules, 1963. The 1986 Rules have, however, been repealed by the Punjab Cooperative Agricultural Societies Rules, 1997. Under Rule 5(2) (c), it is provided that no person shall be appointed to the service, if he is related to any committee member within the meaning of Rule 2(k) of the Rules. Rule 2(k) defines relative to include wife, son, daughter of the person concerned. Rule 46 of the 1963 also provides that no relative of any member of the Committee shall be appointed to any office in the Cooperative Societies, except with the previous sanction of the Registrar. Respondent No. 3 was appointed by the Managing Committee of the petitioner-Society as a Salesman by resolution dated 13.12.1996. The appointment was made at a time when father of respondent No. 3 was a member of the Managing Committee. Rule 5 (1) of the 1986 Rules provides that appointments shall be made by the Committee on recommendations of the Selection Committee consisting of the Presiding to other Committee members of the Society and the Assistant Registrar concerned or his nominee. This procedure was also not followed at the time of appointment of respondent No. 3. The post was never advertised and no requisition was sent to the Employment Exchange calling for applications from suitable candidates. Prior sanction of the Registrar was also not taken before the appointment was given to respondent No. 3. A complaint was made against the illegal appointment of respondent No. 3. The appointment was found to be illegal by the Registrar, Cooperative Societies and action was ordered to be taken against the Inspector, Incharge of the Society. Services of respondent No. 3 were terminated on 28.5.1999 against which he filed an appeal to the Registrar, Cooperative Societies. This appeal was heard by the Additional Registrar, Cooperative Societies. By order dated 24.8.1999, the appeal was accepted, even though the Additional Registrar observed in the order that the post was created to adjust the son of Prem Nath who was one of the Committee members of the Society. At that time, it was held that modus operandi adopted by terminating the services was not upto the mark. It was held that the employee should have been charge-sheeted and action should have been taken only after conducting a regular enquiry and after giving him due opportunity. This order was not challenged before the higher authority as father of respondent No. 3 was in the Managing Committee of the Society. Again one Angrez Singh who was a member of the Society made a complaint in 25.4.2001 to the Registrar, Cooperative Societies, Punjab that no action had been taken in terms of the order dated 24.8.1999. In the meantime, one Tarlochan Singh had to be reinstated in service. His services had been terminated. The Society had filed a writ petition in this Court which was dismissed. On his reinstatement, one Amar Singh who had been promoted in his place, had to be reverted to the post of Salesman. The petitioner-Society had only two posts i.e. one Secretary and one Salesman. Therefore, by Resolution dated 25.9.2001, respondent No. 3 was given three months notice for terminating/retrenching him from service. Respondent No. 3 filed an appeal against the notice of retrenchment. It was, however, dismissed being premature on 24.2.2003. Even after the dismissal of the appeal, the Managing Committee did not take any action against respondent No. 3. Fresh elections to the Managing Committee were held on 11.8.2003. The new Managing Committee passed a resolution on 27.8.2003, in which the post held by the petitioner was declared surplus. The retrenchment notice was not served on respondent No. 3 as he refused to accept the same. Efforts to serve respondent No. 3 firstly through the postal authority and secondly through the Chawkidar of the village did not bear any fruit. Consequently, by a detailed resolution dated 13.9.2004, the Managing Committee terminated the services of respondent No. 3. Aggrieved against the resolution dated 30.9.2004, respondent No. 3 filed an appeal in the court of Deputy Registrar Cooperative Society, Ludhiana. In the meantime, one Bhupinder Singh has filed CWP No. 10841 of 2004 seeking quashing of the resolution dated 13.12.1996 and the approval dated 16.12.1996. The aforesaid writ petition was ordered to be heard alongwith the present writ petition. By order dated 18.10.2004, the appeal has been allowed on the ground that the controversy with regard to the legality of the resolution dated 13.12.1996 is pending in CWP No. 10841 of 2004. The petitioner-Society filed a revision petition before the Joint Registrar, Cooperative Societies. It has been dismissed in limine on 5.11.2004 again on the ground that CWP No. 10841 of 2004 is pending in this Court. It has also been observed that the petitioner should go to the High Court for redressal of grievances. Respondent No. 3 has filed a detailed written statement. It is stated that the action of the petitioner is mala fide. Before terminating the services of respondent No. 3 by resolution dated 30.9.2004, no charge-sheet was issued, nor any enquiry was held under Rule 14 of the 1997 Rules. Therefore, the termination of the services of respondent No. 3 by the petitioner-Society is void, ab initio and the same is not in the eyes of law. In the resolution dated 30.9.2004, it is clearly mentioned that services of respondent No. 3 are terminated on account of loss caused to the society by wrong appointment of respondent No. 3.

(2.) We have heard the learned counsel for the parties at length and perused the paper-book.

(3.) Mr. Prashar, learned counsel appearing for the petitioner submits that both the orders dated 18.10.2004 and 5.11.2004 passed in the appeal and the revision filed by respondent No. 3 are without jurisdiction. No appeal was maintainable under Rule 15 of the 1997 Rules are services of respondent No. 3 had not been terminated by way of punishment. He has been retrenched from service. Resolution dated 30.9.2004 had no relevance to the controversy involved in CWP No. 10841 of 2004. Respondent No. 3 has been ordered to be retrenched as the post held by him had been declared surplus. This was necessitated on the reinstatement of Tarlochan Singh as Secretary of the petitioner-Society and consequential revision of Amar Singh as a Salesman. Society had only two posts. Respondent No. 3 was, therefore, rightly declared surplus. In CWP No. 10841 of 2004, the petitioner therein had challenged the initial appointment of respondent No. 3. On the passing the resolution dated 30.9.2004. CWP No. 10841 of 2004 has been rendered infructuous. On the other hand, counsel for respondent No. 3 had argued that the order of retrenchment is only a camouflage for the order of dismissal. Since the order of dismissal has been passed without complying with the rules of natural justice, it could be challenged by way of appeal.