Sriganganagar Jila Dugdh Utpadak Sahkari Sangh Limited And Ors vs Rakesh Mohan And Ors

By way of the present writ petition, filed under Article 226/227 of the Constitution of India, the petitioners have challenged the order dated

22.01.2020, passed by the Rajasthan State Cooperative Tribunal (hereinafter referred to as the 'Tribunal').

Mr. B.S. Sandhu, learned counsel for the petitioners assailed the order aforesaid mainly on the following grounds:

(i) The respondent-employee, namely Rakesh Mohan could not have approached the Arbitrator for redressal of his grievance, inasmuch as, remedy of

appeal was available to him [which lies before the establishment committee under Regulation No. 9 of the Rajasthan Cooperative Dairy Federation

Employees (Disciplinary Action & Appeal) Regulations, 1980 (for short, 'the RCDF Regulations')].

(ii) The notice for punishment was not required to be given, in view of the proviso to Article 311 (2) of the Constitution of India.

(iii) The learned Tribunal has not properly appreciated the facts and material available on record - it has not given any reasons or finding regarding

perversity in the order of punishment.

In response to the arguments aforesaid, Mr. G.R. Punia, learned Senior Counsel for the respondents argued that the grounds raised by Mr. Sandhu

are not tenable. His response, if encapsulated in brief, was as under:-

(i) The impugned order dated 16.05.2011, passed by the petitioner - Managing Director, Sri Ganganagar Zila Dugdh Utpadak Sahkari Sangh, Ltd.

Hanumangarh (the cooperative society), removing the respondent No. 1 from services, itself was without jurisdiction.

(ii) The objection regarding jurisdiction of the Arbitrator came to be raised for the first time before the appellate authority - the Tribunal and that too

orally; there was no such objection in the reply, which was filed by the society before the Tribunal.

(iii) The disciplinary authority was the General Manager and, as such, it was the General Manager alone, who could have passed any order against the

respondent.

(iv) There were two stems of the above argument - (a) the order of the Managing Director was without jurisdiction and

(b) since the Managing Director himself has passed the order, he could not have heard the appeal and, as such, petitioner had no remedy left, except

invoking arbitration under the provisions of Section 58 of the Rajasthan Cooperative Societies Act, 2001 (for short, 'the Act') for redressal of his

grievance.

(v) Learned Tribunal below has heard and decided the appeal against the order of Arbitrator and, as such, it cannot now be argued that the order

passed by the Arbitrator was without jurisdiction, particularly when the Arbitrator had held against the respondent.

(vi) The order dated 16.05.2011, passed by the Managing Director was illegal, as no notice prior to imposing punishment of removal was given to the

respondent, which was mandatory as per Regulation No. 12(2)( b) of the RCDF Regulations. Regulation No. 12(2)(b), in no ambiguous terms,

provides for issuance of a notice alongwith proposed punishment.

A perusal of the material available on record shows that the petitioner-society has not even placed on record the show-cause notice, claimed to

have served upon the respondent No.1 before passing of the order of removal.

In a writ of certiorari, it was incumbent upon the petitioner- society to at least have placed on record, the show-cause notice, said to have been

served upon the respondent No.1. It was all the more necessary, when the Tribunal has held against them on this count.

Proviso to Article 311(2) has been heavily relied upon by the learned counsel for the petitioners to substantiate the action of the petitioners. Article

311(2) reads thus:-

311 (1) *** *** (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been

informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence

adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply:-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that

authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such

inquiry.

(3) *** ***

Upon perusal of Article 311, this Court is of the opinion that the Article incorporates Rules of natural justice in cases of disciplinary enquiry. Proviso

to Article 311(2) to some extent whittles down observance of principles of natural justice, but the use of expression ""will not be necessary"" cannot be

read to mean that it will eclipse the RCDF Regulation in this regard. When the regulations governing the field mandates that a notice is required to be

given, embargo contained in Act 311(2) cannot be taken shelter of. That apart, the regulation that expands the scope of Article 311, cannot be given a

go-bye to take away an employee's fundamental rights.

In view of the aforesaid and considering the Regulation 12 (2) (b) of the RCDF Regulations, which mandates the disciplinary authority to serve a

notice of proposed penalty along with the inquiry report, this Court is of the prima-facie view that removal of respondent - employee was not in

accordance with law, besides being against the principles of natural justice.

This Court is also not much convinced with the argument of Mr. Sandhu that respondent No.1 could not have availed the remedy of arbitration.

Since, the impugned order had been passed by the Managing Director, who would have been appellate authority, had the order been passed by the

General manager, the respondent cannot be alleged to have approached a wrong forum i.e. Arbitration Tribunal. The remedy of Arbitration is a

statutory remedy provided in the Act.

Second limb of his argument that remedy of arbitration in the face of remedy of appeal could not have been availed, may sound attractive, at the

first instance, but it does not hold ground in light of the facts of the present case, particularly when objection of the jurisdiction was not raised, at the

first available opportunity - before the arbitration Tribunal. The same came to be raised only when the appeal was being argued finally before the

learned Tribunal.

According to this Court, it is too late in a day to raise such a technical objection, particularly, when the provision of arbitration knows no bar.

So far as last argument relating to improper appreciation of evidence is concerned, the same can be considered only after perusal of record. Even

the purported notice, which is said to have been served is required to be seen by the Court before taking a final view of the matter.

The matter is thus, admitted; record summoned.

Interim relief is however refused; stay application dismissed, as the respondent No.1 has been scooped out of employment, without following due

process.

Send for record.

Matter be listed for final hearing in the month of May, 2021.