UNA, HIMACHAL PRADESH Vs. SHIV KUMAR

JUDGEMENT

(1.) THIS appeal by the appellant Bheira Agricultural Cooperative Society, Bheira is directed against the judgement dated 28.6.2007 whereby the learned Single Judge held that the copy of the enquiry report had not been supplied to the petitioner before terminating his services; the petitioner had been seriously prejudiced by the non supply of the copy of the enquiry report; the disciplinary authority could not terminate the services of the petitioner before permitting him to make a representation against the enquiry report and lastly the appellate authority and the revisional authority had not taken into consideration the specific plea raised by the petitioner that the enquiry was not conducted in accordance with law. Shri Ajay Sharma, learned counsel for the Cooperative Society has raised a preliminary submission that in view of the law laid down by a Division Bench of this Court in Chandresh Kumar Malhotra v. H.P. State Cooperative Bank and others 1993 (2) Sim.L.C. 243 no writ could lie against the cooperative society. In our view this objection is totally misconceived since in the present case after the termination order passed by the cooperative society the respondent -employee in terms of the service rules filed an appeal against the order of his termination before the Assistant Registrar, Cooperative Societies, Una which appeal was dismissed on merits on 29.1.2000. Thereafter revision petition was filed and the same was dismissed on 16.3.2006. Thus the writ petitioner does not only challenge the order passed by the Cooperative Society but challenge is also made to the orders passed by the statutory authorities duly empowered to decide such matters under the H.P. Cooperative Societies Act. This view has already been taken by a Full Bench of this Court in Ajmer Singh vs. The Hamirpur Distt. Co -op. Marketing and Consumers Federation Ltd. and others, 1995 (1) Sim.L.C. 395, wherein it was held that where the impugned order is passed by an authority constituted under the Act then a writ petition under Article 226 of the Constitution of India would be maintainable.

(2.) COMING to the merits - this case has a long and chequered history. From the record it is apparent that the original writ petitioner joined service with the appellant -society on 1st July, 1980. In August 1988, the petitioner was arrested in connection with a murder case and remained in judicial lockup for a period of eight months. Therefore, on 18th August, 1988 the petitioner was placed under suspension and thereafter on 9th March, 1989 he was discharged from service. The petitioner challenged his termination order which led to filing of CWP No. 287 of 1997 by the Society and it was directed in this petition that the appellant -Society shall pay arrears of salary to the employee in case he shows that he was not gainfully employed during the period in question. It was further directed that as an appeal in the murder case is pending in this Court the appellant would not be reinstated for a period of six months. It would also be pertinent to mention that it was brought to the notice of this Court that there were charges of misappropriation of funds against the private respondent and the Court also granted six months time to complete the inquiry in this regard. The petitioner thereafter filed contempt petition being Cont.Pet.(C) No. 47 of 1996 complaining that the directions given in the writ petition had not been complied with. In the contempt petition a direction was issued that the inquiry be completed within a period of eight weeks from the date of its commencement. Thereafter the Assistant Registrar inquired into the matter and held an inquiry. Admittedly, the writ petitioner was associated with the inquiry. The inquiry report went against the petitioner on various grounds. Thereafter the Society sent a notice on 22.09.1997 to the petitioner. The notice is in Hindi and its translation is as follows: - Registered AD. The Bheira Agricultural Cooperative Society, Bheira, Tehsil Amb, Distt. Una. To Shiv Kumar son of Shri Sukhdev Ram Resident of Village and P.O. Hamboli, Tehsil Amb, District Una, H.P. Sub: - Notice - to Shri Shiv Kumar for termination of his services from the post of Secretary. That in compliance to the order of the Hon 'ble High Court, Shimla dated 19.3.1997 an inquiry was conducted against you by the Assistant Registrar, Cooperative Societies, Una who vide his report dated 10.7.1997 has found that all the charges levelled against you stand proved. Therefore, by means of the copy of this resolution you are given one months notice to show cause why your services as Secretary be not terminated. A copy of the inquiry report dated 10.7.1997 is enclosed. Therefore, in the General House it was resolved that the services of Shri Shiv Kumar, former Secretary be terminated by giving him one months notice. This information is being given to you by registered post. Therefore, after 30 days of the receipt of the letter you shall cease to be the Secretary of the Society. Sd/ - President/Secretary. The Bheira Agricultural Cooperative Society, Bheira.

(3.) THE first question is whether the judgement of the Apex Court rendered in Managing Director, ECIL, Hyderabad and others vs. B. Karunakar and others, (1993) 4 SCC 727, is applicable to inquiries held by Cooperative Society.