Dismissed

Lakshman Singh v. President Lakshmanpura and Anr.

Rajasthan HC4 Apr 2017CW/8112/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging compulsory retirement due to enquiry procedural flaws but held that admitted embezzlement cases under the Cooperative Society Act preclude reinstatement, rendering further enquiry on other charges unnecessary.

What did the court decide?

The writ petition was dismissed; the order of compulsory retirement was allowed to stand.

Lakshman Singh Vs President Lakshmanpura… — Pension and Retirement Benefits | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 8112 / 2010

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Lakshman Singh S/o. Shri Deep Singh, Vavasthapak (Compulsorily retired)., Lakshmanpura Gram Seva Sahkari Samiti Danta Ramgarh, Distt. Sikar, ata present resident of Gram Beri, Goru Mil Dhani, Post Beri Via Kurdan, Distt. Sikar (Raj.)

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Versus

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1 President Lakshmanpura Gram Seva Sahkari Samiti Ltd., Lakshamanpura Panchayat Samiti Danta Ramgarh, Distt. Seekar (Raj.1

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", L.:"%*"+ * 2. Joint Reg.i~tra.r, Cooperative Societies, Jaipbr: f$egion, Jaipur. 2'

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For Petitioner(s) : Mr. Shivi Sanyam on behalf of '. MpRa~,eej+ui-a'i a 3 >-, I q, ,, -*. ? For Respondent(s) : Mr.,@$Sharma *. + . , x 1 ,. . ~ * #, '"-%,# -". <. ;s.<-' (;. h ' 8ry . . ! . . i. ,-L,r :+ w', -". . rr. ?$.' i. ,.-r '? ':L"da&@i...t. ; a .- . ; q %a HON'BLE MR. JUSTICE-Si$NJ,EE.V1PRAKASH SHARMA

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' . 1. Petitioner, by prayed as under:'(i) That the to this case may kindly be recalled. i (ii) by an appropriate writ, order :or direction the order dated 07/10/2006 passed by the village Lakshmanpura Cooperative Societies Ltd., Lakshamanpura, Panchayat Samittee Data Ramgarh, Distt. Sikar and order dated 30/07/2007, passed by the Joint Registrar Cooperative Societies laipur and order dated 04.01.2010 passed by the court of Registrar Cooperative Societies Raj. Jaipur may kindly be quashed and set aside consequently the petitioner be reinstated with all consequential monetary and other benefits. I (iii) By an appropriate writ order or direction any other

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appropriate relief to which the petitioner is found entitled to may also kindly be granted in his favour,"

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The facts whicb have culled out from the petition are that the petitioner was appointed as a Manager (Vyavasthapak) in the concerned cooperative society and his services are governed by the "PRATHMIK KRISHI RIN DATRI SAHAKARI SAMITIYANI BRAHT KRISHI BAHU UDDESHIYA SAMAKARI SAMITIYAN KE 4 h 3.' )a? . I X. *i ' 9 i L.. 2003." A ,chal'ge-sheet was served upon the ,..petltoner vide memoca,ndum dt.17/08/2006 under condition No. 35CB) of the Service Conditions wherein six charges were levelled against him. 1 -.. -r p. * . "'br " The first charge was wittT~ecjaid:.tpn$~foll.owing 68 ".i ; xv directions issued I,.., # L ,* '* : .-- a,,: .a, ;a>,% .' + J;,. ,;<. _d_* to him, second ha<'&Vfa"s3@it"i' . eksa iY :?ega,rsl+td-,pe$forming i h Pi . - work of the * x ?.I _.iP&?k$?<<_ , , L';, " h.n-;&ky* > .* ; institution slowly, thir&x~&ewas&th $a9:h- ,..6~e9-3hu. A regard to having #.. -. x v. 2? **_I->$<- 2$&d$y;;,:,_** -~ **_81,~:-_** committed fraud, theftz$~I;"$i"zl&:merif?,;and . ;"#- ... misusing property of ," _f_ , >Y the Institution, fourth charge. was, with regard to being habitually absent from the Instituti:oa;,cthe fiffh 6barge was with regard to " . J. being habitually carel$'!s and%he sixt/i,$ct$hge was with regard to . . .+, I, I 'I .." i having been held glili$ti -bpad2.rsAa 'trn'&r4@f~~&fii57 PJ >L .I..-of the Rajasthan * . .., +---. .. $$ .nw,,b.-aA. .-,. osi + Cooperative Society Act ~.* of * 200-1. - r'd '-%--,: - : -1 ,>-I 1 "t 3. Learned counsel for the petitioner has taken this Court to the enquiry report which is stated tobe a detailed enquiry report and has pointed out that while Condition 35(B) of the Service Conditions specifically required that the petitioner bi given fair opportunity to put his defence with regard to each charge and also that he shall be given an opportunity to put his defence, statement and also defend his case, no such proceedings were

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conducted/adopted by the Enquiry Committee. It is submitted that the entire onus was put on the petitioner to disprove the charges as if the charges are presumed to be correct. Although the procedure, which was required to be followed, was that each and every charge was to be proved by way of witness or documents which were also required to be placed. It is his case that no document was made available to him. The charges were wholly "& " % 4 kf -. vague and the petitiqr has"be%ncheljd ;g@ilJy with a prejudiced mind. Learned counsel for the petitioner also submits that copy of enquiry report is required to be made available to hfm'so that he 474 4- : may beable to submit objections relating to the manner in which the enquiry officer has proceeded-.with in the enquiry, was no " * N ". k - " . 3h :i "** su p pl i ed to h i m a n d no-o A. p~$~~$~!t_y*~~~~g~~~~~n .'3yi'iq4p. to him to put up his *<, P~w+3.akk*~d,.t .i., ' \ ;. **3** *.. %,-r,~.._ T.$$e $* .! 4'; $,*$$I =-A,>. ?%. objections relating to ~t@e"ie-qgi,~d;kep.a@and the petitioner has - h3. .-."i it .. ; been wrongfully punisbed $2 .zp,as.s!ng,i +.. .. a **-v_** $ order of compulsory v .,, +$ ... t *, , . ,?dvf&& ! ,.a,, retirement. He has also r&efi dpd'ri tbe:!aw laid down by the Apex , Court in the case of Managin<g Director, ECIL, Hyderabad and " . . others Vs. B. Karuna SCC 727 wherein it was held as under:-

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% "25. While the ri~h%-fo~~~pi.ese,fiiaj"ainst the findings S in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report. the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no

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penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment.

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26. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken. into cp.nsideration by it to come to its conclusions. It .is difficult to"sa9 in ,adivance, to what extent the.s~aid findings including the"pw'iiishment, if ". :P any, r,e;ammended in the report would influeice the disc,ipl,iriary authority while drawing its concl,usions. The findings further might have been recorded wifho'ut considering the relevant evidence on record, or by misconstruing it or unsupgq,t&gd by it. If such a finding 6.. . 1. is to be one of the,docu.-nents"to be. ,.. considered by the disciplinary authority, 'he tini~~les,"hf. natural justice require that ^'th.epJ"er;npl.@yee 1 ._ 1 ''sh%&,ld.f.'>have a fair .* opportunity to meet,- b~~l&$,;ah! %$bfiovert it before he is condemned.<?+i"6i$$d&$dkiz$~ -S .a r .r *.> ."' .. +,, s ,~ , ~ . .,. of the tenets of justice and a denil' r:;. &. - 6f"fair:ppruni't ;iWA.. ., .. ? ,? .. 'L '. 1 .. CCI. I;., to the employee .h3 " to consider the findrgs:ire'co.$dc'by a third party like the Inquiry fficer,ith&t,'ivi( "9 the employee an opportunity to replyfto$it?$!thgu@h it is true that the disciplinary authorit+ -.. 2- * <. ,$s,~~oid 'to arrive at its own .. A. findings on the basi.s~of:t$e:.ievi~~e1;1ce d#..va.--. .@ , + recorded in the inquiry, it is al@. ,e,qal& tr,;th$@he disciplinary i.i* authority takes j intd -I , ".,gonsideraton! -.* $ +u'~~ the findings recorded by the ~'~~~~i,$i.~~ffii:~i;al~~~~ith the evidence A,, . -, , ,",,:<r% on record. In the iumstances, the findings of the Inquiry Officer do constitute a'n riiiportant material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the

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disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that bL,,,e the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it."

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Per --contra, learned, cq,usel' ;for the respondents agrees 3 3, t-? ) ,I - k . 6 - li ? candidly that so la- fir I &-the enquiry repor$& concerned, it lacks 8.. % at 43, ,.,+? :i from fair pr"olc&d'ure which is required to be followe"d'kowever, C . it is xwi: X-J" ,A submitre.d+ that the fact remains that the petitioner has ,been held guilty of committing embezzlement in four different cases in the /. I. proceedings ndertaki~~~~~~ndr'$:cfiidn=iiiiof .. the Act of 2001. It is & 4;:j2.-p; ,,:y :. -i* i +" 2- i ..+ 1: **_,a:<,_** * >.';'.&:* ..L also submitted that inTerms :of;:onditio.n %. :0?>-21(1) of the Service * , . - - . .< 9 ;.*; Conditions , Manager of:th.e3ocety;[email protected]:es <J r38.:;. .% a,. ineligible to continue . h, ., ,, jr:,%-" ~$;$,:<.,-$"..l.y.:*$i",?%i;""fi? and is required to be re~~oge$.$Q~$-e:;he$has , .., n ., **a,,,** . **i** **_..>-_* %a# been held guilty of ! ' : a +.# embezzlement under ec#on$5iT! :i ..., rj dfi i.,, ttieiAct , of 2001 where there is 4 $: ,. ri I I ii$ j ; ,lt % 1 :i, no stay operating with .*:eg$,dito :s.ueh,ecision, **#.. ,..I* It has also been RI; . :.*L,@,-;.;.. A:',$$" ..A- - .. 6. I'L ,-;>?&;;,; !p" rrw a$r .. .. .#a+: . -;".=k.. ,.pointed out that the!9p'etltlgner rha's':hi$?elf admitted to have . , *, a' - ., .. accepted two of the oi"dkl;s.$ased%$&h&eistrar **,.."-.21** >"<.; .- i:.: :; under Section -18*.a;."j.. ,'* **LL;. :.<*..h** # 57 of the Act of 2001 and..,hasf~deposited~-the _i_ d **_I_** .' ,,~ . amount back to the 1 , -, >"R"R. ? "+ - $ $ ", .q " Society and thus his admission is there regarding guilt of committing embezzlement. The third case relating to Section 56 where amount has been found to be embezzled by him at the stage of first appellate authority, the petitioner has again admitted the amount and has promised the deposit the same fully. Thus, the charge no.6 is admitted by the petitioner and no purpose would be served in sending him back for fresh enquiry in

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accordance with law for all the six charges as one charge, which has been admitted by the petitioner, is sufficient to remove him from service in terms of Condition 21(1) of the Service Conditions.

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Having heard counsel for the parties and going through the material available on record, this Court finds that the proceedings conducted by the respondents in terms of Condition No. 35(B) of the Service Conditions are not in accordance with the provisions t C, contained therein.,+:Ttjejptiti[jles a ,a .- of nbtu$gjustice ...- I having been ir- - " _4"‘._ followed and""4b.e petitioner was not given fait-fopportunity A, b to i defend himself with regard to the charges levelled against * him. In normal course, this Court would have sent the matter back for i' conducting fresh enquiry frdh;'the same stage, however, taking "..a".! - - 1.. i ..* ..y - into consideration **t:a.6tfe** +. .. .p"e~~ti'ane_r+;$s$:been held guilty of .$,;;- . " 3. -' " ' "' $7,h <? , '7 .-*.r f _txj8:-;_ ** ,g. " C:<.& >a. embezzlement in foO1;'d1ffer;e'nt.~~?iiases* ,ix- f :;6L3 .:.,-. >- . .- #;., ss.f in the proceedings '3" ' " * h," >.a ." undertaken under ec6ig~~$7~~dtb<?~ct$8f a"Gs ,:". d2,d,; :: 4. .---;i, ?jr 2001 and in three of , . ' '>" ; $7," such matters he has already depo,si$ed the amount to certain " M " !t \ extent therefore in terms of ondi:ion No. 21(1) of the Service Conditions, the petitio.ne.r,:wou.l.d. hot be er?ititled .i? to continue on the - 4 post of Vavasthapak.'>* Thus;: $0 pu:fpos.e* ihould be served with J,;, 2* 2- * 2,. ' * ;e ' :* ' regard to conducting ed$ir afieshzfor other charges. In these ,- ..I? circumstances, the order; of"."co.mpulsor~ retirement does not call for interference and the matter requires to be given a quietus at this stage.

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6. The writ petition is accordingly dismissed.

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(SANJEEV PRAKASH SHARMA)J.

Lakshman Singh v. President Lakshmanpura and Anr.

Case brief

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Lakshman Singh v. President Lakshmanpura and Anr.

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