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Judgment
WP-8744-2011
These connected petitions were heard analogously on the joint request of the parties. Parties have fought a long drawn battle in the corridors of the
Courts. There is a chequered history of litigation between the parties. I am not inclined to enter into the said aspect because admittedly after some
rounds of litigation, as per liberty granted by order dated 29.11.1987 (Annexure-P/1), the petitioner was subjected to a disciplinary proceeding which
ended with imposition of the punishment of demotion by order dated 23.07.1999. This order was unsuccessfully challenged by the petitioner before the
Deputy Registrar in Case No.55-170/2000-01. The said authority, by order dated 07.10.2004 rejected the application of petitioner against the
punishment order. Aggrieved, the petitioner preferred Appeal No.78-190/2004 before the Joint Registrar, Cooperative Society. The said authority by
order dated 07.10.2006 opined that the disciplinary proceeding suffers from procedural infirmity. Both the charges which were incorrectly found
proved. Thus, the punishment order was interfered with by directing the respondents to decide the intervening period on the basis of medical
documents filed by the petitioner. The Tribunal interfered in this order by order dated 18.02.2009 (Annexure-P/11) which was unsuccessfully
challenged by the petitioner in Review Case No.03/2009, decided on 21.01.2011 (Annexure-P/12)
(2) Mr. Ankit Saxena, learned counsel for the petitioner advanced two fold submissions. Firstly, it is contended that the learned Joint Registrar set
aside the disciplinary proceedings and punishment because same suffered with procedural impropriety and perversity. The Tribunal without assigning
any reason as to why the said finding of Join Registrar is bad in law, erroneously relied on Deputy Registrar’s order dated 07.10.2004, which was
already set aside by the Joint Registrar. Secondly, the Tribunal has mechanically set aside the order of Joint Registrar without finding any real fault in
the same. The review application was also mechanically rejected.
(3) Per-contra, Mr. Pranay Gupta, learned counsel for the employer supported the orders passed by the Tribunal in both the rounds. Mr. Gupta
submits that in departmental inquiry the petitioner was given reasonable opportunities to defend himself. The inquiry officer’s report was supplied
to him alongwith a show cause notice issued by disciplinary authority. In turn, petitioner’s response was invited and a final decision was taken. In
absence of any procedural infirmity in the departmental inquiry, no interference is warrant by this Court. He submits that scope of interference in a
departmental inquiry by this Court is very limited. This Court is not sitting as an appellate authority to re-appreciate the entire evidence.
(4) No other point is pressed by the learned counsel for the parties.
(5) I have heard the parties at length and perused the record.
(6) Before dealing with the rival contentions of the parties, it is apposite to quote the relevant portion of findings given by the learned Joint Registrar,
which reads as under:
“Jh tSu dks tks vkjksi i= fn;k x;k Fkk mleas vkjksi ;g Fkk fd os i’kq vkgkj la;a=] ekaxfy;k esa viuh inLFkh nkSjku fcuk iwokZuqefr ds eq[;ky;
NksM+dj vodk’k ij tkus rFkk ckn esa chekj gksdj vodk’k ciwoZorhZ vodk’k ds miHkksx djus dh iwokZuqefr izkIr dj fnukad 21-11-83 ls 26-11-83 rd vftZr vodk’k ij izLFkku fd;k ysfdu vodk’k dh
lekfIr ds mijkar Jh tSu yxkrkj drZO; ls LosPNkuqiwZd ,oa tkucw>dj vuqifLFkr jgsA tkap vf/kdkjh us foHkkxh; tkWp mijkar bUgsa vkjksi dk nks""kh
ugha ik;kA ,eihlhMh,Q us ds izca/k lapkyd ;fn tkap izfrosnu ls lger ugha Fks rks mu rF;ksa dk gokyk nsrs gq, vkjksih dks vafre dkj.k crkvks lwpuki=
fn;k tkuk pkfg, Fkk tks fd izdj.k esa ugha fn;k x;k oj.k blds LFkku ij tkap izfrosnu Hkstrs gq, ml ij vkosnd ls vH;kosnu pkgk x;k tkWp izfrosnu esa tc
vkjksih dks nks""keqDr ekuk x;k rks oks fdl ckr dk mRrj nsrkA fnukad 12-04-99 dks tks dkj.k crkvksa ,oa O;fDrxr lquokbZ dk lwpuk i= fn;k x;k mlesa
tkap izfrosnu ds Hkzeiw.k ,oa vLi""V gksus dk mYys[k gS fdUrq mu rF;ksa dk mYys[k ugha gS ftuds vk/kkj ij tkap izfrosnu ls vlger gksrs gq, vkjksi
vkjksfir fd;s x,A bl izdkj vkjksih dks os rF; gh Li""V ugha Fks ftuds vk/kkj ij mls vkjksfir dj nf.Mr fd;k tkuk izLrkfor FkkA vr% ,slh fLFkfr esa vkjksih ls
leqfpr mRrj dh vis{kk djuk U;k;ksfpr ugha gSA bl izdkj ;g Li""V gS fd vkjksih dks leqfpr cpko dk volj izkIr ugha gqvkA
tgkW rd vkjksiks ds fl) gksus dk iz'u gS os Hkh i;kZIr ugha gSA vkosnd fnukad 13-3-83 ls 8-5-83 rd dh vof/k rd vfuf/kd``r vuqifLFkfr dk iz ' u gS ml
laca/k esa mldk vodk’k Lohd``r gqvk gSA ;fn izca/ku dks ;g yxrk gS fd Jh tSu us tkucww>dj chekj gksus dk cgkuk cukdj os fcuk lwpuk ds
vuqifLFkr jgs gsa rks mls bl vof/k ds vodk’k dks fpfdRlh; vk/kkj ij Lohd``r ugha djuk FkkA ,d rjQ vkosnd dks fpfdRlh; vodk’k Lohd``r fd;k tkrk
gS ogha ;g dSls ekuk tk ldrk gS fd og chekjh dk cgkuk cukdj drZO; ls tkucw>dj nwj jgkA vkjksi ds nwljs Hkkx esa Jh tSu ds fnukad 21-11-83 ls 26-11-
83 rd vftZr vodk’k ij izLFkku djus mijkar vftZr vodk’k lekfIr ds ckn yxkrkj vuqifLFkr jgus dk iz'u gS ml laca/k esa oLrqfFkfr ;g gS fd Jh tSu dh
21-11-83 ls 3-12-83 rd dh vftZr vodk’k dks Lohd`r fd;k x;kA ckn esa vko’;drk iMus ij bUgsa okfil cqyk;k x;kA Jh tSu fnukad 01-12-83 dks
mifLFkr gq, rFkk budk 3 fnu dk Lohd``r vodk’k fujLr dj fn;k x;kA bu rF;ksa dh iqf""V mudh lsok iqfLrdk ls gksrh gSA vr% vkjksi dk ;g Hkkx Hkh
lgh ugha gS fd Jh tSu vodk’k lekfIr mijkar yxkrkj drO; ls LosPNkiwoZd ,oa tkucw>dj vuqifLFkr jgsA fnukad 10-12-83 ds mijkar eq[;ky; ls mudh
vuqifLFkfr dk iz'u gS fd os bl vof/k esa Hkh vuqefr ysdj vodk’k ij vk;s Fks rFkk mUgksaus viuh chekjh dh lwpuk lacaf/kr dks nh FkhA bl laca/k
esa tkWp vf/kdkjh us vius tkWp izfrosnu esa Li""V fu""d""kZ fudkys gSaa bu fu""d""kksa o Jh tSu ds mRrj dks [kf.Mr djus ds i;kZIr vk/kkj n.Mkns’k
esa ugha gSA dsoy esfMdy lfVZfQdsV vodk’k ij jgus dh lwpuk ds lkFk u Hkstus ls ;g fu""d""kZ fudky ysuk fd vkjksih chekj ugha Fkk lqlaxr ugha
gSA
mDr ls Li""V gS fd vkjksih dks nf.Mr djus gsrq fu/kkZfjr izfdz;k dk ikyu ugha fd;k x;k vkSj u gh ml ij yxk, x;s vkjksi izekf.kr FksA vr,o vkjksi dks nf.Mr
fd;k tkuk U;k;ksfpr ugha gSA bl laca/k esa v/khuLFk U;k;ky; us tks fu""d""kZ fudys gS os lqlaxr ugha gSA
09-12-83 ls 01-12-97 rd e``rizk; lsokvksa dks esMhdy lfVZfQdsV ds vk/kkj ij fpfdRlh; vodk’k esa ifjofrZr djus laca/kh v/khuLFk U;k;ky; ds
vkns’k ds fo:) ,eihlhMh,Q }kjk vihy izLrqr dh xbZ gSaA Jh tSu dh lsok lekfIr ls iqu% lsok esa vkus rd dh vof/k dk fujkdj.k ekuuh; e-iz-jkT; lgdkjh
vf/kdj.k ds f}rh; vihy dzekad 109@2001 esa fn;s x;s fu.kZ; fnuakd 21-11-2001 }kjk fd;k tk pqdk gS rFkk ftldh iqf""V eku- mPp U;k;ky; ds
fjVfiVh’ku 1044@2002 esa fn;s x;s fu.kZ; fnukad 28-10-
03 }kjk dh tk pqdh gSA bl izdkj ;g fcanq fuf.kZr gks pqdk gS vr% bl fcanq dk fu.kZ; v/khuLFk U;k;ky; }kjk fd;s tkus dk dksbZ vkSfpR; izfrikfnr ugha
gksrkA bl laca/k esa ,eihlhMh,Q }kjk Hkh tks bl vof/k dks MkW;tukWu vof/k ds :i esa ekU; fd;s tkus dk fu.kZ; gS og Hkh eku- vf/kdj.k ,oa mPp
U;k;ky; ds funs’kksa ds vkns’kksa ds ifj.kkkeLo:i Lo;a ‘’kwU; gks tkrk gSA ]
[Emphasis Supplied]
(7) A careful reading of said paragraph makes it clear that contention of Mr. Ankit Saxena, learned counsel for the petitioner has substantial force.
The Joint Registrar interfered with the punishment order for twin reasons: (i) the inquiry officer’s finding was in favour of the petitioner. The
disciplinary authority supplied the said findings alongwith show cause notice without assigning reason for disagreement. The supply of copy of a
favourable report is of no consequence. Interestingly, no reason for disagreement by disciplinary authority was communicated to the petitioner. Thus,
this facet is relating to procedural impropriety and (ii) the second finding is that there were two sets of allegations of unauthorized absence against the
petitioner. Firstly, he remained absent from 13.03.1983 to 08.05.1983. The Joint Registrar found that for this period petitioner’s medical leave was
sanctioned and hence he cannot be punished for remaining unauthorizedly absent. The second spell is from 21.11.1983 to 26.11.1983. For this period,
the earned leave was sanctioned to the petitioner. Thus, the Joint Registrar opined that petitioner cannot be punished after sanctioning the leave in his
favour.
(8) The contention of Mr. Gupta that scope of judicial review is limited has substance. In 1999 (1) SCC 759 [Apparel Expert Promotion Council vs..
A.K. Chopra], the Apex Court held that it is the decision making process which is subject matter of judicial review in a case of departmental inquiry.
If the present case is examined on the anvil of this principle, it will be clear that even decision making process was pregnant with serious procedural
impropriety. The Joint Registrar opined that although disciplinary authority is competent to disagree with the findings of inquiry officer, in event of such
disagreement he was obliged to issue a show cause notice with tentative reasons for disagreement. Thus, finding of Joint Registrar is in consonance
with 1995 (6) SCC 157, [Ram Kishan vs. Union of India and other]; 1998 (3) SCC 385, [State of Rajasthan vs. M.C. Saxena], 1998 (7) SCC 84,
[Punjab National Bank and others vs. Kunj Behari Misra]; and 2000 (1) SCC 416, [High Court of Judicature at Bhombay, through its Registrar vs.
Shashikant S. Patil and another]. The common string in these judgments is that the disciplinary authority may disagree with the findings of inquiry
officer, but in that event, he must issue a show cause notice alongwith tentative reasons of disagreement to the delinquent employee and then call for
his response so that he could take final decision on the aspect of punishment. The Tribunal has merely reiterated this principle that inquiry officer’s
finding is not binding on disciplinary authority but did not touch or disturb the findings of Joint Registrar that in the present case, the disciplinary
authority has actually not issued any notice for disagreement by assigning tentative reasons. Mere repetition of principle without its proper application
is of no use. The learned Tribunal has neither analyzed and disturbed the findings of Joint Registrar, whereas the procedural infirmity is found in the
order of disciplinary authority nor any finding is given on the aforesaid portion of the order of Joint Registrar where for both the spells, it was opined
that leave was already sanctioned. Interestingly, the Tribunal has relied on the order of Deputy Registrar dated 07.10.2004 which was already set
aside by the Joint Registrar. No reasons are assigned by the Tribunal as to why the Joint Registrar’s order was bad in law. Thus, Tribunal has
clearly erred in disturbing the order dated 07.10.2006. Resultantly, the orders of Tribunal dated 18.02.2009 & 21.01.2011 are set aside. The
punishment order dated 23.07.1999 (Annexure P/6) which was challenged by the petitioner before the Deputy Registrar and then matter travelled to
Joint Registrar and Tribunal, shows that the petitioner was held guilty of para-1(5), 1(7), 1(14), 1(18), 1(21) and 1(29) of the charge-sheet. The
disciplinary authority opined that the petitioner is found guilty of serious misconduct and, therefore, inflicted major punishment of reduction of post and
pay for a period of two years. Pertinently, the learned Joint Registrar in his abovementioned order only dealt with two charges relating to unauthorized
absence of petitioner in two spells, namely, from 13.03.1983 to 08.05.1983 and 21.11.1983 to 03.12.1983. He did not deal with other charges which
were found proved by the disciplinary authority. Sadly, both the parties have not filed the copy of charge sheet in the present case and, therefore, this
court is not able to examine the charges mentioned therein. However, it is clear that the order of Joint Registrar dated 07.10.2006 (Annex.P/10) does
not deal with all the charges leveled against the petitioner. The Tribunal has also not examined this aspect.
(9) Considering the aforesaid, while setting aside the order of tribunal, I deem it proper to remit the matter back to the tribunal to examine this aspect
also and take a fresh decision in the matter keeping in view the observations of this Court.
(10) Resultantly, the matter is remitted back before the tribunal to take a final decision in accordance with law. Since punishment order was imposed
way back on 23.07.1999, the tribunal shall make endeavor to decide the matter within sixty days from the date of production of copy of this order.
(11) Petition is allowed to the extent indicated above. No cost.
WP-14976-2017
This petition impugns the order dated 04.08.2017, whereby the Tribunal has set aside the order dated 10.11.2011.
(2) The admitted facts between the parties are that the second appellate Court by order dated 21.11.2001 (Annexure-P/3) granted 50% back wages
to the petitioner. The petitioner filed an application (Annexure-P/2) under Section 85 of the MP Cooperative Societies Act and projected as if 50%
back wages pursuant to appellate order dated 21.01.2001 were not paid to him. He quantified his claim to the tune of Rs.1,51,337/- + Rs.13,193/-. The
other side resisted the said claim. Both the parties filed their calculation charts. Since, Joint Registrar did not compare the said charts and passed the
order dated 30.06.2010, the Tribunal remitted the matter back to the Joint Registrar by order dated 10.11.2011. In turn, the order dated 06.03.2013
was passed, whereby the claim of Rs.1,64,529.40/- was allowed in favour of the petitioner. The matter traveled to the Tribunal in F.A. No.32/2013.
The Tribunal set aside the entire order.
(3) Mr. Ankit Saxena, learned counsel for the petitioner submits that the Tribunal has erred in setting aside the entire order, whereas the petitioner
was at-least entitled to get 50% of back wages on the original post from where he was terminated.
(4) Mr. Gupta, learned counsel for the employer submits that if it is the only prayer, to this extent liberty may be reserved to the petitioner to re-raise
his claim but he has no right whatsoever to be treated as promoted and calculate his 50% back wages on the basis of salary of the promotional post.
(5) No other point is pressed by the learned counsel for the parties.
(6) I have heard the parties at length and perused the record.
(7) In the considered opinion of this Court, Section 85 of the MP Cooperative Societies Act, 1960 is in the nature of execution proceedings. In this
proceeding, disputed claims of the parties cannot be adjudicated. The original order dated 21.11.2001 only grants 50% back wages to the petitioner.
This would mean that petitioner will get 50% wages of the post which he was holding at the time of his termination. It appears that petitioner became
ambitious and he treated himself as promoted and calculated his back wages on the basis of salary of the promotional post. It is clearly impermissible
and beyond the pale of execution proceedings. To this extent, petitioner’s application seeking execution is clearly frivolous in nature. The
petitioner, at best was entitled to get 50% of back wages (if not already paid) in the proceedings.
(8) It appears that petitioner himself invited trouble because of his over-ambition. He inflated the claim on the basis of salary of the promotional post
which was turned down by the Tribunal. No fault can be found in the order of the Tribunal to the extent such inflated claim of the petitioner is turned
down. Therefore, in view of stand of the parties, while affirming the order of Tribunal, whereby inflated claim of the petitioner is declined, it is
observed that if 50% back wages has not been paid to the petitioner, he may agitate his claim to that extent only before the appropriate authority by
filing a fresh application. In that event, said authority shall examine that claim afresh to the extent indicated above.
(9) With aforesaid observation, petition is disposed of.