U.P. Cooperative Federation Ltd. Vs. Shri Ram Singh Yadav & Ors  INSC
882 (1 December 1997)
V. MANOHAR, D.P. WADHWA
1ST DAY OF THE DECEMBER, 1997 Present:
Mrs.Justice Sujata V.Manohar Hon'ble Mr.Justice D.P.Wadhwa Mrs. M.Qamaruddin, J.A.Warsi,
Shahid Hussain, Advs. for the Respondents.
following Judgment of the Court was delivered:
appeal is directed against thee judgment dated July 3, 1989 of the Division
Bench of the High Court of Judicature at Allahabad (Lucknow Bench) allowing the
writ petition of the respondent. The respondent who was an employee with the
appellant challenged the order dated May 25, 1978 of the Joint services on the ground
that he abandoned his services from July 21, 1977 and that the respondent would not
be entitled to any pay and allowances.
order terminating the services of the respondent, however, says that "as
such he is absent since 21
July, 1997, and his
services are terminated for the reason of being absconded in this way". By
the impugned judgment, the High Court set aside the order dated May 25, 1978 on
the ground that no disciplinary proceedings were initiated against the
respondent and his services could not have been terminated without there being
an enquiry officer appointed and no enquiry ever having been conducted against
the appellant on the alleged ground of his abandoning his job.
appellant is a co-operative society registered under the U.P. Co-operative
Societies Act, 1965 (for short 'the act). It is, therefore, governed by the
provisions of that Act and the Rules framed thereunder. Section 122 of the Act
prescribes constitution of an Authority to control employees of co-operative
societies. This Section we may reproduce as under:
Authority to control employees of co-operative societies:- (1) The State
Government may constitute an authority or authorities, in such manner as may be
prescribed, for the recruitment, training and disciplinary control of the
employees of co-operative societies, or a class of co- operative societies, and
may require such authority or authorities to frame Regulations regarding
recruitment, emoluments, terms and conditions of service including disciplinary
control of such employees and, subject to the provisions contained in Section
70, settlement of disputes between an employee of a co-operative society and
The Regulations framed under sub-section (1) shall be subject to the approval
of the State Government and shall, after such approval, be published in the
Gazette, and take effect from the date of such publication and shall supersede
any Regulations made under Section 121." The State Government framed the
U.P. Co-operative Societies Employees' Service Regulations, 1975 which were
published in the U.P. Gazette dated 6th January, 1976. The Regulations were applicable
with effect from the date of their publication in the U.P. Gazette. Clause (xi)
of Regulation 2 defines 'employee' which means a person in whole-time service
of a co-operative society, but does not include a casual worker employed of a
society. Under Regulation 5 recruitment for all appointments in a co- operative
society shall be made through the Board which means the U.P. Co-operative
Institutional Service Board.
constitution and the functions of this Board may, however, be not relevant at
this stage as the stage as the respondent was appointed on January 22, 1973 as a Helper, a Class IV employee,
temporarily by the Secretary of the appellant, viz., prior to the coming into
force of the Regulations. Under Regulation 102 a co-operative society is
empowered to frame service rules fro its employees which, however, are to be
subject to the provisions of the Regulations. The Regulations, however, apply
to the existing employees of a co-operative society which were on its roll on
the date the Regulations took effect. Under Regulation 103, the Regulations
shall be deemed inoperative to the extent they are inconsistent with any of the
provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya Adhisthan
Adhiniyam, 1962, Workmen's Compensation Act, 1923 and any other labour laws for
the time being in force, Regulations 102 and 103 may be set out as under:
(i) Subject to the provisions of these regulations, a co- operative society
shall within three months from the date of coming into force of these
regulations (unless an extension of time is allowed by the Board in writing)
frame service rules for its employees.
The service rules framed under sub-section (i) shall be submitted to the Board
for approval and shall be operative only after the approval.
Notwithstanding, anything contained in these Regulations the existing employees
shall have an option to continue to be governed by the existing service rules,
if any, in the society only in respect opt the new service rules on these
(1) Provisions relating to pay, increments and allowances (other than travelling
allowance), probation, confirmation, retirement, provident fund, and gratuity,
shall be deemed as included in the term "emoluments and benefits".
case of any doubt or dispute in interpretation in respect of the matter
mentioned in (1) above, reference shall be made to the Board whose decision
shall be final.
Existing service rules means authentic service rules framed by and with the
approval of the competent authority.
The provisions of these regulations to the extent of their inconsistency, with
any of the provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya
Adhishthan Adhiniyam, 1962, Workmen's Compensation Act, 1923 and any other labour
laws for the time being the force, if applicable to any co-operative society or
class of co-operative societies, shall be deemed to be inoperative."
Regulation 19 provides for termination of services of an employee. This
Regulation, in relevant part, is as under:
Termination.- Services of an employee shall be terminable:- (a) in case of a
temporary employee, on one month's notice in writing on either side, or in lieu
thereof by payment of one month's salary by the party which gives notice:
that in case of direct appointments made for a specific period, it shall not be
necessary to give any notice or any pay in lieu thereof.
'Specific period' means stated period of less than six months.
three months' notice in writing on either side in case of a confirmed employee.
A notice given by employee under Regulation No.19 shall be deemed to be proper
only if he remains on duty during the period of the notice:
that the employee may be allowed on request to avail such portion of earned
leave as may be due to him which shall however not exceed the notice
period." Under Regulation 33, the salary accruing to an employee ceases
when the employee ceases to be in the service of the co-operative society. In
case of an employee who is dismissed or removed from service or dies while in
the service of the co-operative society the salary shall cease from the date of
his dismissal, removal or death, as the case may be. Chapter VII of the
Regulations contains provisions for penalties, disciplinary proceedings and
appeals. Under Regulation 84, an employee can be removed from service and he is
to be provided with the copy of the order of punishment. The penalty of removal
from service cannot be imposed without recourse to disciplinary proceedings. An
authority other than by which he was appointed unless the appointing authority
has made prior delegation of such authority to such other person or authority
in writing. Regulation 85 provides in detail as to how disciplinary proceedings
are to be conducted. Any order of removal or dismissal from the service or
reduction in rank or grade held substantively by the employee cannot be passed
except with the prior concurrence of the Board (Regulation 87). The order
imposing penalty is also appealable under the Regulations.
attention has been drawn to the Service Rules of the appellant which are stated
to be in force from July
1, 1956 and
particularly to Rules 17 and 19 thereof which are reproduced as under:
If any employee behaves carelessly and commits irregularities or his actions
are prejudicial to the interests of the Federation an enquiry may be
instituted. The employee will be called upon to explain the charges that may be
to submit his explanation to the enquiring officer to be deputed by the
Secretary. Such an employee will also be given opportunity to be heard in
person if he is so desires. If no explanation is received or the explanation submitted
is unsatisfactory, the punishment that is proposed to be given to him will be
communicated to cause why the proposed punishment may not be given to him.
further explanation is received or the explanation is unsatisfactory, the
Executive Committee or the Secretary as the case may be, will award the
punishment to him of the Executive Committee or the Secretary is satisfied that
the punishment is deserved.
Notwithstanding anything contained in Rule 17, if any employee is guilty of any
misconduct as defined herein he shall be liable to be dismissed without notice
or any compensation in lieu of notice. The following acts and omissions shall
be treated as misconduct:
insubordination or disobedience, whether alone or in combination with others,
to any lawful and reasonable order issued or authorised by the authorities.
Theft, fraud, or dishonesty in connection with the business or property of
damage to or loss of goods or property of P.C.F.
Taking bribes or any illegal gratification.
Habitual absence without leave, or absence without leave, for more than 15 days
in one stretch.
While absent from duty with or without leave, failure without sufficient cause
to rejoin duties within a reasonable time when specifically called upon to do
so by a competent authority.
Habitual breach of any law or rule applicable to P.C.F.
Riotous or disorderly behaviour during working hours, or any behaviour
subversive of discipline.
awarding punishment under this Rule the gravity of the misconduct, the previous
record of the employees, and any other extenuating or aggravating circumstances
that may exist shall be taken into account." It will be thus seen that
under Rule 18, an employee is guilty of misconduct if he is absent from duty
with or without leave or he failed, without sufficient cause, to rejoin duties
within a reasonable time when specifically called upon to do so by a competent
authority. In such a case the employee is liable to be dismissed without notice
or any compensation in lieu of notice. Indeed, in awarding punishment under
Rule 18, the gravity of misconduct, the previous record of the employee or any
other extenuating or aggravating circumstances that may exist shall be taken
into account. If we rely on this submission of the appellant that in the
present case action has been taken under Rule 18, it would appear to us that
the respondent has not been removed from service or his services have not bee
terminated but he has been dismissed. In that case it will be clearly in
violation of Regulations 84. It is not necessary for us to examine all the
Service Rules of the appellant but Rules 17 and 18 cannot stand in face of
Regulations 84 and 85 and in view of Regulation 102. That, therefore, does not
appear to be a correct submission in the circumstances of the case.
noticed above, the respondent was employed as Helper, a class-IV post, by the
Secretary of the appellant on a consolidated salary of Rs. 125/- per month on
temporary basis and his services were terminated on May 25, 1978.
the period of his employment was transferred to Unnao, Gorakhpur and then finally to Lucknow as and when the need arose on
completion of any particular project which was being handled by the appellant.
On November 1, 1975, an order was issued by the
Secretary of the appellant to absorb services of Mates including that of the
respondent who were working under A.R.C. in the cloth scheme which had been
competed. It was mentioned in the order that if any Mate was found unsuitable,
the secretary should be informed and further that if in any district some
people had been appointed on daily wages then those appointments should be
cancelled and the services of Mates should be used. It was also mentioned that
the appointment should, however, be totally temporary and could be terminated
any time without any notice. From November 1, 1976, the respondent was given a regular
scale of pay in the pay-scale of Rs. 165-215/-. It appears from the record,
however, that there were persistent complaints against the respondent about his
working. He was accused of inefficiency, indiscipline and even insubordination.
So much so even a memo was issued to him but no action was taken against the
respondent. He was, however, transferred from one office to another of the
appellant but all at Lucknow. Lastly the respondent was
transferred from PCF Lucknow to PCF Press. This was by order dated July 14, 1997. By this order three employees were
transferred and the order reads as under:
following assistants/Chaukidar are transferred at places written relieved from
their place of work may assume their work at New Place with immediate effect.
of the Present place New place employee M/s of work of work
Ram Singh PCF Lucknow PCF Press Yadav
Bun PCF Lucknow PCF Press
Kumar PCF Lucknow Head office Sd/-N.P. Aggarwal Secretary Office U.P.
Co-operative Federation Limited 6, Campar Road, Lucknow.
dated July 14, 1997 Copy to the following for
information and necessary action.
Dist. Superintendent PCF Lucknow
Superintendent Coal Dump, Lucknow
Regional Officer, Lucknow
Deputy Managing Director/Account/Press
Accounts Officer (General)
Superintendent (Nazarat)" Respondent admits that he was so transferred and
also the fact that he did not join new posting. While the appellant complains
that the respondent abandoned his work and did not report for duty when
transferred on May 30,
1977 to Regional Office
at Lucknow and then ultimately to PCF Press on
July 14, 1977, the respondent says that no order
was served upon him when he was transferred to Regional Office on May 30, 1977. He nevertheless admits his
transfer to PCF Press and his non joining there. But his case is that when he
was transferred on May
30, 1977 he was
reverted from the post of assistant, on which he was officiating, to that of Chaukidar.
His grievance is that though he qualified Intermediate Science Examination and
was entitled to be considered fro appointment to the post of assistant in the
appellant as and when vacancies for such posts arose out he was not so
considered in violation of Regulation 27.
this Regulation out of the total vacancies to be provided for 50, per cent
shall, as far as possible, be filled up by promotion from amongst the eligible
be made on the basis of seniority-cum-merit. Respondent has also based his
claim on two communications where he was described as assistant. One such
communication is dated March
23, 1976 by the
District Superintendent PCF where he has been addressed as "Sri Ram Singh Yadav
(Assistant) PCF Lucknow" and ordering him to keep entire record pertaining
to wheat purchases for planning year 1976-77 and conducting necessary
proceedings in respect thereof. The other such communication also the Distt.
Superintendent, PCF, Lucknow is dated April 6, 1976. This communication is addressed to
as many as five employees and the respondent is described as Assistant and
detail of his work is "to help Ram in wheat delivery". The
communication dated April
6, 1976 is an order
which starts as under:
planning for purchasing of wheat in Rabi, year 1976, the employees in District
Office are posted in duty accordingly. This work will be additional to their regular
job and job of purchasing the wheat will be done in priority." There is,
however, no order by the competent authority by which it could be said the
respondent was promoted as Assistant. As a matter of fact it is the case of the
respondent himself that he was wrongly reverted and he also complains that he
was wrongly ignored for promotion to the post of Assistant which promotion was
denied to him. For not joining the duty the respondent appears to take shelter
on his plea that he could not have been reverted to the post of Assistant and
he would not join the new posting as Chaukidar. Letter terminating the services
describes the respondent as Chaukidar. It is difficult to understand the plea
raised by the respondent that he was entitled to the post of Assistant, or he
was justified in not joining his new posting unless he was given posting as
Assistant. His not joining the posting as Assistant. His not joining the
posting on that account does not appear to be based on any of his legal rights
under the Regulations.
leave was granted on special leave petition filed by the appellant in his case,
on the interim application it was ordered that there would be stay of payment
of back wages to the respondent until further orders. Record of this appeal
shows that there has been controversy again if after the impugned judgment of
the High Court the respondent ever joined his service. On the other hand, it
was stated by the appellant that the respondent had moved the High Court for
taking contempt proceedings against the officer of the appellant for not
allowing him to join the duty. This Court recorded that the respondent it
seemed was not reporting for duty whereas on the other hand he took out
contempt proceedings in the High Court. The Court noted that the registered
letters dated 2.3.90 and 25.9.90 were sent to the respondent to join duty out
he did not appear to have responded to the same and instead to put pressure he
had taken out contempt proceedings in the High Court. This Court expressed
unhappiness about the manner in which the respondent was proceeding with the
matter. It was directed that in order to give a last chance to the respondent
he should report for duty latest by 15th January, 1994, failing which, the Court would be
constrained to infer that he was not interested in the job. The matter did not
appellant again approached this Court complaining that though in pursuance of
earlier order the respondent did join the duty but he again absented. Be that
as it may, we are not concerned with the conduct of the respondent or any
action which the appellant could take against him for his alleged misconduct
during the pendency of this appeal. It would, however, appear that because of
the pendency of this appeal the appellant chose not to take any action against
the respondent. It is always open to the appellant to initiate disciplinary
proceedings against the respondent for his remaining absent unauthorisedly or
not joining duty during the pendency of this appeal if circumstances so
could not be denied that the respondent is an employee within the meaning of
clause (xi) of Regulation 2 of the Regulations. He is in the whole-time service
of the appellant. He is not a casual worker employed on daily wages or a person
in part-time service of the appellant. It is not material for us to examine
therefore if the respondent is temporary or has been substantively appointed to
the post he is holding. The impugned order is in fact an order of removal of
the respondent from service. It is not a termination in the strict sense within
the meaning of Regulation 19 as the requirements of that Regulation have not
been met and that is also not the case of the appellant that the action was
under Regulation 19. That being so the impugned order of termination is in fact
removal of the respondent from the service and procedure as prescribed in
Regulations 84 and 85 had therefore to be met. That has admittedly not been
done. There is no chargesheet, no enquiry officer and no enquiry proceeding.
Regulations prescribe detail procedure for conduct of the disciplinary
proceedings. Provisions of Regulations 84 and 85 have certainly been violated
to the prejudice of the respondent.
therefore uphold the order of the High Court setting aside the termination of
service of the respondent by order dated May 25, 1978 to the extent that the respondent
has to be reinstated in the service though it does not preclude the appellant
from holding an enquiry or passing proper order in accordance with law.
However, since on the admission of the respondent himself that he has not
worked from July 3,
1977 till the impugned
judgment dated July 3,
1989 of the High Court
the respondent would not be entitled to any pay and allowances for that period.
This is so as respondent is at fault in not joining his new posting without any
valid reason. Though ultimately if there is no enquiry or the respondent is
exonerated this period shall be counted towards his pensionary and other
appeal is thus partly allowed to the extent mentioned above. There will
however, be no order as to costs.