- (1.) R. K. Agrawal, J. By means of the present writ petition filed under Article 226 of the Constitution of India the petitioner, Rajesh Tiwari, seeks the following reliefs: " (i) issue a writ order or direction in the nature of certiorari quashing the impugned order dated 12-9- 2001 passed by the respondent No. 1, District Assistant Registrar, Co-operative Societies, U. P. Deoria (Annexure-15 to the writ petition) and the consequential order dated 14-9-2001 passed by the respondent No. 2, Member Secretary, District Administrative Committee, Co-operative Societies, U. P. Deoria (Annexure-16 to the writ petition ). (ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the working of the petitioner as the Secretary Incharge in Sadhan Sahkari Samiti Ltd. Leraha, Development Block Gauri Bazar, District Deoria. (iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (iv) award the costs of the writ petition to the petitioner. " Briefly stated the facts giving rise to the present petition are as follows:
(2.) ACCORDING to the petitioner, he was initially appointed on 10th August, 1991 as Assistant Secretary in Sadhan Sahkari Samiti Ltd. , Vinayak, Block Gauri Bazar, District Deoria, hereinafter referred to as "the Society" pursuant to the resolution passed by the Society. The District Assistant Registrar, Co-operative Societies, U. P. , Deoria, hereinafter referred to as "the Assistant Registrar" vide order dated 30th December, 1991 had approved the appointment of the petitioner on the post of Assistant Secretary in the Society. Upon an application made by the petitioner on 20th March, 1993, the Assistant Registrar vide order dated 11th May, 1993 transferred the petitioner to Sadhan Sahkari Samiti Ltd. Leraha, hereinafter referred to as "the Samiti" as Clerk on which post he joined on 15th May, 1993. The cadre of the Clerk and the Assistant Secretary is the same. The post of Secretary of the Samiti on which one Dehari Prasad was working as the Secretary on additional charge basis of the Samiti fell vacant. Pursuant to the order passed by the Member Secretary, District Administrative Committee, U. P. Primary Agricultural Co-operative Societies Centralised Services on 18- 11-1999, the charge of the Secretary of the Samiti was to be handed over to a person approved by the Governing Body of the said Samiti. The Governing Body of the Samiti passed a resolution on 6th January, 2000 providing for handing over additional charge of Secretary of the Samiti to the petitioner. The resolution was also approved by the Assistant Registrar on 10th January, 2000. The petitioner took over the additional charge of the Secretary of the Samiti on 13-1-2000. ACCORDING to the petitioner, the Governing Body of the Samiti passed a resolution on 23-10-2000 whereby the salary of the petitioner and one Sri Ram Dulare, Chowkidar, was enhanced to Rs. 1088/-plus Rs. 1362/- as subsistence allowance and Rs. 700/- plus Rs. 300/- as subsistence allowance respectively. The resolution was approved by the Assistant Registrar vide order dated 23-12-2000. The petitioner was paid arrears amounting to Rs. 9,738/- for the period from 1- 4-2000 to 30-9-2000. ACCORDING to the petitioner, he was paid salary at the enhanced rate. One Rama Shanker Yadav, who was the President of the Samiti, filed an application dated 4th May, 2001 to the District Magistrate, Deoria stating therein that the petitioner in connivance with the Branch Manager, District Co-operative Bank, Gauri Bazar, Barhaj, by making his forged signature had withdrawn his salary and arrears of pay, which was forwarded to the Assistant Registrar for holding an inquiry. The Assistant Registrar vide order dated 5th May, 2001 directed the Co-operative Officer (Collection) to hold an inquiry. The Additional District Co-operative Officer, Incharge Rudrapur Tehsil was appointed as Inquiry Officer, who expressed his inability to hold the inquiry and requested that the inquiry be held by a Three-Member Committee. The Assistant Registrar vide order dated 30th June, 2001 constituted a Three-Member Inquiry Committee to inquire into the charges levelled against the petitioner. An application under Section 156 (3) of the Code of Criminal Procedure, 1973, was also filed by the Assistant Registrar before the Chief Judicial Magistrate, Deoria, which was registered as Miscellaneous Application No. 108 of 2001. It was allowed by the Chief Judicial Magistrate vide order dated 28th July, 2001 and the Station House Officer, Police Station Gauri Bazar, Deoria was directed to register a First Information Report against the petitioner under Sections 467, 468, 419 and 420 of Indian Penal Code, 1860. The order of the Chief Judicial Magistrate was challenged by means of a revision filed before the District and Sessions Judge, Deoria, which was dismissed vide order dated 8th August, 2001. The Three-Member Inquiry Committee inquired into the matter and submitted a report on 10th September, 2001. After receipt of the inquiry report the Assistant Registrar vide order dated 12th September, 2001 cancelled its earlier order dated 10th February, 2000 whereby approval was granted to the resolution dated 6th January, 2000 of the Governing Body of the Samiti proposing to give additional charge of the post of Secretary of the Samiti to the petitioner and a further direction was issued to the Samiti to terminate his services. In compliance of the order dated 12th September, 2001, the Member Secretary, District Administrative Committee, Co-operative Societies U. P. Deoria passed an order dated 14th September, 2001 whereby one Triyugi Nath Tripathi was directed to take over the additional charge of Secretary of the Samiti. The two orders are under challenge in the present writ petition on the grounds that the charges levelled against the petitioner have no legs to stand; the petitioner has neither fabricated nor forged any document nor it was done with any ulterior motive; the order has been passed in violation of the principles of natural justice and no opportunity was given to the petitioner before passing the impugned orders; the Inquiry Committee had not found the petitioner guilty inasmuch as two of the Members did not give any positive report and instead have recommended the matter to be examined by a Handwriting Expert while the third Member had given an adverse report. Thus, it was incumbent upon the Assistant Registrar to refer the matter to the Handwriting Expert before drawing any adverse conclusion. In the counter-affidavit filed by Sri Ram Pyare Tiwari on behalf of the respondent No. 2, it has been stated that the petitioner could not have been posted as Secretary of the Samiti after the amendment of the Rules in the year 1999 as the post in question became de-cadre, moreover he had no lien on the post and was only appointed to officiate on the said post which has only been taken away. The order does not affect the rights of the petitioner. In the counter-affidavit filed by Rama Shanker Yadav on behalf of the respondent Nos. 4 and 5, it has been stated that the petitioner was holding only the additional charge of the Secretary, which charge has been taken away and it does not affect his rights. The charges has also been tried to be established on merits.
(3.) IN the rejoinder affidavit filed by the petitioner, the pleas taken in the writ petition have been reiterated. We have heard Sri Himanshu Singh, learned Counsel for the petitioner and Sri Ram Niwas Singh, learned Counsel for the respondents.;