Judgment:
D.K. Seth, J.
1. The petitioner who was a confirmed Co-operative Supervisor in U. P. Co-operative Union Limited, was transferred from Jalaun to the Head Office by order dated 21-11-1981. Against the said order the petitioner had moved a writ petition, on which by order dated 11-1-1982 it was clarified that the suspension proceedings taken against the petitioner may go on but the order shall not be given effect to and in the meantime the petitioner shall not be compelled to assume the charge at the transferred place. It is alleged that having been annoyed on account of grant of the interim order the respondents had purported to terminate the petitioner's services by order dated 26-11-1983 (Annexure 1 to the writ petition). It is contended by Sri Bhagwati Prasad learned counsel appearing on behalf of the petitioner that in view of Section 22 without any notification no disciplinary proceeding can be initiated against the petitioner. However, the said order dated 26-11-1983 was challenged by the petitioner in Writ Petition No. 1843 of 1984 on the ground that the same was passed without serving any charge-sheet, without giving any opportunity to file reply to the charge-sheet and without holding any inquiry against the petitioner. The writ petition was, however dismissed on 27-2-1984 on the ground that the petitioner had an alternative remedy by way of appeal Thereupon on 24-3-1984 the petitioner filed an appeal. In connection with the said appeal the petitioner filed an application by which he had sought to adduce certain evidence in support of his case to contradict the decision in the inquiry The said appeal however, was rejected on the ground of its being barred by time by an order dated 27-4-1984. Against the said order dated 27 4 1984 the petitioner preferred another Writ Petition No. 7093 of 1984 which was disposed of by directing the petitioner to approach the appellate authority explaining the delay by an order dated 13-8-1984. On 21-8-1984 the petitioner filed en application explaining the delay and prayed for disposal of the appeal on merits, which is Annexure-5 to the writ petition. By an order dated 10-12-1986 the petitioner was intimated that he may submit his reply to the charge which are '22' in number, levelled against him. The said communication is Annexure-6 to the writ petition. Pursuant thereto the petitioner submitted his reply on 8-6-1987. It is alleged that the petitioner did not hear anything about the said appeal thereafter. By communication dated 7-3-1988 the petitioner was informed that his appeal was dismissed on 28-1-1988 (Annexure-7 to the writ petition). By means of present writ petition the petitioner has challenged the said order of termination of service and the order of dismissal of his appeal.
2. Sri Bhagwati Prasad, learned counsel for the petitioner contends that in absence of any notification Under Section 22 of U. P. Co-operative Societies, Act, 1965 there cannot be any domestic inquiry held against the petitioner and, as such, the entire proceeding is void. Secondly he contends that no charge-sheet having been given and no opportunity to show cause having been given and there having been no inquiry proceeding the order of termination is void and nullity, since no such order of termination could be passed without affording any opportunity to the; petitioner. The third contention of the learned counsel for the petitioner is that the alleged allegation that attempt was made to serve the petitioner a copy of the charge-sheet is a myth. Inasmuch as during the said period the petitioner was staying at Allahabad. The alleged allegation of publication in some local daily newspaper where the petitioner was staying is not the proper Circulation. Since it was not circulated at Allahabad and therefore, it cannot be treated as adequate service and there was no question of affording sufficient opportunity to the petitioner. The next contention of the learned counsel for the petitioner is that the Appellate Authority has not considered the case of the petitioner and did not afford opportunity to him. Despite his prayer for giving opportunity to adduce evidence before the Appellate Authority, he was not given adequate opportunity to do so. It was further contended that he was not given opportunity of hearing by the Appellate Authority. The last contention of the learned counsel for the petitioner is that the order passed by the Appellate Authority does not spell out sufficient reasons and has not dealt with merit of the case end, as such the same is liable to be dismissed on these grounds. The learned counsel for the petitioner contends that present writ petition should be allowed and the order of termination should be set aside.
3. Sri Sunil Kumar Rai, learned counsel appearing on behalf of the respondents, on the other hand contends relying on the counter-affidavit and the annexures annexed thereto that the petitioner was afforded sufficient opportunity to attend the inquiry. Though suspended he preferred to stay at Allahabad for the purposes of persuing his remedy in this High Court. According to him since the order of suspension was stayed, therefore, there was no occasion for the petitioner to remain out of office by reason of non-existence of the order. The suspension pursuant to the order passed by this court the petitioner ought to have attended his office. He also submitted that it appears from the order itself that since sufficient opportunity was made to serve copy of the charge-sheet, therefore, the disciplinary authority has no option but to proceed ex-parte with the inquiry. He further submits that the charges levelled against him were grave in nature and were found on scrutiny of papers by the disciplinary authority. He further submits that in appeal the petitioner was given sufficient opportunity of hearing to defend himself. Even pursuant to the application he was asked to adduce evidence after submitting proper reply. While leading the court through the Appellate order and translating the same at the bar he pointed out that the petitioner was present in the hearing of appeal and his reply was duly considered and he was asked to adduce evidence on the defence submitted by him by means of his reply. But he could not do so. Therefore there is no infirmity in the order of the Appellate Authority. He also pointed out to the acknowledgement Card by which notice of hearing of appeal was served on the petitioner, was received him.
4. Learned counsel for the petitioner further contended that the Deputy Registrar, Co-operative Society, is not the appointing authority of the petitioner and, therefore, he cannot terminate his services and, as such, the order of termination is void and cannot be sustained.
5. In reply there to Sri Rai appearing on behalf of the respondents contended that the petitioner is subject to U. P. Co-operative Societies Federal Authority Business Regulations, 1975 is applicable so far as the petitioner is concerned. Regulation 2 (4) of the Regulations defines 'Appointing Authority' as the 'Deputy Registrar of the Region'. The services of the petitioner having been terminated by the Deputy Registrar of the Region, there is no infirmity in the order.
6. So for as the question of giving opportunity to the petitioner by the Disciplinary authority is concerned was equally agitated before the Appellate Authority, now the Appellate Authority has given fresh opportunity to the petitioner to adduce evidence after inviting his reply. It appears that the Appellate Authority has considered the said reply and had given sufficient opportunity to the petitioner to adduce evidence which he did not avail of. Admittedly, the petitioner was present during the course of hearing. From Annexures-CA-4 and CA-5 to the counter-affidavit it appears that the petitioner had received notice and after having signed the acknowledgement Card, zerox copy whereof and filed as Annexure CA-4 and 5 respectively, therefore, it cannot be said that the petitioner was not given adequate opportunity during the course of hearing of appeal. He was given further opportunity to adduce relevant documents in appeal but he was not successful in availing the said opportunity and could not substantiate the same. Therefore, it cannot be said that no opportunity was afforded to the petitioner.
7. Then again the Appellate Authority appears to have considered the record and had discussed the same but did not find anything to interfere with the finding of the disciplinary authority upon scruting of the papers. The finding of the Appellate Authority is a finding of facts which has assumed the character of concurrent finding and this Court in writ jurisdiction cannot undertake to delve in finding of facts unless something is shown to this court that the same are perverse and on the basis of such material no reasonable man of ordinary prudence could arrive at the conclusion, that had been arrived at or that the material evidence has not been considered, resulting in substantial injustice. In the course of argument no such perversity or non-consideration of relevant material or infirmity has been drawn to the notice of this Court. The main thrust of the learned counsel for the petitioner was on the question that no opportunity was given to the petitioner, which appears to have been given, as indicated above. The other limb of the argument of the learned counsel for the petitioner was that without notification Under Section 122 of the U. P. Co-operative Societies Act the disciplinary proceeding cannot be initiated.
8. The learned counsel for the petitioner also contends that 1975 Regulations does not apply in the case of the petitioner. Therefore, the petitioner having been appointed by the State level committee in 1962 his service cannot be terminated by the Deputy Registrar, Co-operative Societies, pursuant to the authority conferred upon under 1975 Regulations which had never been given retrospective operation.
9. The said question was raised in the case of Ram Chandra Dixit v. Deputy Registrar, Co-operative Societies, 1980 UPLBEC 325, which was cited by Sri Rai, learned counsel for the respondents. In the said judgment it was held that all supervisors who were working on the date of commencement of the said Regulation, was brought under the control of the Federal Authority. The provisions made therein are in respect of appointment, training, confirmation and dismissal etc. under Regulation 19 the Regional Deputy Registrar had been conferred with the power of appointment and has thus been described as the Appointing authority, power of dismissal has also been conferred upon the appointing authority. It was also held with regard to the question of notification Under Section I22 that the same is of general in nature and had conferred power on the State Government constituted under the authority and various purpose mentioned therein which would have control over the employees of Co-operative Societies. While Section 123 made special provision empowering the State Government to constitute or recognise one or more Federal authorities. Now the present Federal authority (business) having been recognised there was no necessity of issuing any further notification Under Section 122 in individual case of the disciplinary proceeding when the authority has been constituted by the general notification. The submissions to the effect appears to be wholly misconceived which would be apparent from the observations made in the said case of Rum Chandra Dixit (supra) which observed as under :
'9. Pursuant to the powers of para 9 of the notification dated 13th Feb. 1976 the Federal Authority framed 'The Co-operative Federal Authority (Business) Regulations, 1976. Regulation No. 4 (1) lays down :
'All persons who held, at the commencement of these Regulations a lien on the post of Supervisor or Kamdar in the Union irrespective of the authority under whose administrative control they may be and those to be recruited hence forth by the Authority in connection with the supervision of and assistance to a co-operative society which falls within the purview of the Authority shall be under the control of the Authority.'10. From the above Regulations it would appear that all those supervisors who were working on the date of commencement of these Regulations were brought under the control of Federal Authority. The provisions made, thereunder, are in respect of appointment, training, probation, confirmation, termination, dismissal etc. Under Regulation 19, the Regional Deputy Registrar had been conferred the power of appointments and has thus been described as the Appointing Authority Regulation 66 deals with suspension and empowers the Appointing Authority of the Chairman of the District Committee to place under suspension a staff member against whose conduct an inquiry is contemplated. The power of dismissal has also been conferred upon the Appointing Authority.
From the review of these provisions, it would appear that service of a staff member of Federal Authority is governed by the Co-operative Federal Authority (Business) Regulations, 1976. The appointing authority is the Regional Deputy Registrar. He has been conferred powers to take action against the supervisor employed in the Federal Authority. Federal Authority (Business) Regulation, 1976, is self contained and applies to its employees. A Supervisor of U. P. Co-operative Union Ltd. which is a Federal Authority, can be dismissed by the Regional Deputy Registrar. It may be made clear here that the Expression 'Regional Deputy Registrar' has been defined in Section 2 (iii) (b) means the Deputy Registrar, Co-operative Societies, posted in the Region. Thus it appears that the dismissal order passed by the Deputy Registrar in the instant case is not invalid.
11. Section 122 of the Act deals with a situation different then contemplated by Section 123, Section 122 is general in nature. It confers powers on the State Government to constitute an authority for the various purposes mentioned therein which would have control over the employees of the Co-operative Societies. Section 23 made a general provision empowering the State Government to constitute or recognise one or more Co-operative Federal Authorities. The object of constituting or recognising a Federal Authority is different. From the purpose of giving effect to Section 122 the State had framed Rules 389-A whereas for the Section 123 the rule made was 390. Reading these two Sections viz. 122 and 123 and the Rules 389-A and 390, the inescapable conclusion appears to be that the later in question is special in nature and would apply to Federal Authority alone the service condition of the specified category of employee working in a Federal Authority are governed by the Co-operative Federal Authority (Business) Regulations.
12. Section 123 deals with a special contingency. The argument of the learned counsel for the petitioner that (here was a conflict between Sections 122 and 123 is not acceptable. The question of conflict could have arisen if the two provisions would have dealt with the same subject matter. The general provisions cannot abrogate special provision.'
10. As contended by Sri Rai, learned counsel for the respondents Regulation 2 (4) defines the Appointing Authority the Regional Deputy Registrar while Regulations 68 and 69 prescribes procedure holding disciplinary proceeding in view of observations made above, it cannot be said that those provisions have not been followed.
11. The learned counsel for the petitioner relied on the decision in the case of Uma Shanker Yadav v. Registrar Co-operative Societies and Ors., (1992) 2 UPLBEC 849, contending that the Inquiry Office! should have sent notice of inquiry to him and failure to do so would vitiate the entire inquiry, as has been held in the said judgment. In the said case it was held that even if no reply is received the Inquiry Officer is bound to give notice of date, time and place for holding inquiry to the delinquent employee and failure to do so would vitiate the entire inquiry and dismissal based on the said inquiry is, therefore, nullity. On the facts and circumstances of present case the same is distinguishable from the one that was considered in the case of Uma Shanker Yadav (supra) inasmuch as in the present case on the prayer of the petitioner himself before the Appellate Authority he was given fresh opportunity which he had availed of but failed to adduce to substantiate his defence, as has been noted in the Appellate order itself. Therefore, the ratio decided in the said case cannot be attracted in the facts and circumstances of the present case.
12. In the facts and circumstances of the case the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs.
13. Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges within ten days.