- (1.) D. K. Seth, J. The petitioner was suspended in contemplation of an inquiry by an order dated 16th May, 1973. A dis pute was raised before the Labour Court as to the validity of the said order. The Tribunal had held against the delinquent. The Labour Court by Award dated 29-11-1977 had held that-the suspension of the petitioner was justified and legal and therefore he was not entitled to any relief. A writ petition, being Civil Misc. Writ Petition No. 5287 of 1978, was preferred by the petitioner. By an order dated 10- 7-1979 the said writ petition was allowed and the Award of the Labour Court dated 29-11-1977 was quashed. The Labour Court was directed to adjudicate the dispute. Therefore, while allowing the employer to adduce fresh evidence to substantiate the order of suspension. The said case was registered as Adjudication case No. 428 oi 1974, which was reheard and decided again by an order dated 6th December, 1979, contained in Annexure-F to the writ peti tion. The Labour Court had held that the order of suspension appears to have been cancelled by the Board of Directors Therefore no fresh adjudication on the point was called for. The workman con cerned, Sri Dharmendra Kumar Saxena, would be entitled for full pay during the period of suspension from 16th May 1973 to 29th November, 1977 on the basis of cancellation of the order of suspension with effect from 16th May, 1973. This order stares on the face of the respon dents, so far as the question of suspension is concerned. It appears that the inquiry against the petitioner was also dropped and, therefore, as it appears from the facts of this case, there was nothing against the petitioner, by reason whereof his incre ments or regular pay could have been with held. The Bank had accordingly passed a resolution dated 18-10-1979, permitting the petitioner to get all payments which were with held together with respective in crements. He was also accorded promo tion by the same resolution, which is Annexure-'2' to the writ petition. The said resolution of the Committee of Manage ment dated 18th October, 1979 was stayed by an order dated 15-1-1980, by the Deputy Registrar, Cooperative Societies, Bareilly, which is Annexure-CAl to the counter-affidavit, filed by the respondents Bank. From the said order, it appears that the grant of promotion was contrary to Regulation 5 (ii) (b) of U. P. Co operative Societies Employees Service Regulations, 1975 hereinafter referred to as the said Regulation and the grant of with holding salary is also contrary to the Regulation-84 of the said Regulations Therefore, the Committee of the society was asked to show cause as to why the said resolution should not be cancelled or annulled, or to reconsider the resolution pursuant there to the Committee of Management had for warded the reconsidered resolution dated 23-2-1980, but the Deputy Registrar, Co operative Societies, Bareilly, was not satis fied with the same. Accordingly by an order dated 17th March, 1980 he has pointed out that the resolution dated 23-2-1980 has not satisfied the requirement of notice dated 15-1-1980. Therefore he had asked for sending certain further par ticulars, as specified in seven items in the said letter dated 17-3-1980, contained in Annexure-4 to the writ petition and till the furnishing of such particulars the opera tion of the said resolution was stayed. The said resolution dated 23-2-1980 was with regard to the grant of promotion of the petitioner. The petitioner had obtained stay of operation of the order to the extent by which the resolution No. '4' dated 23-2-1980, was stayed. So far as the other part was directed to be complied with. Learned counsel for the petitioner Sri Vinod Swarup contends that the said part has not been complied with. In the meantime the petitioner has also retired from service.
(2.) SRI Vinod Swarup, learned Coun sel for the petitioner contends that until and unless the said order as contained in Annexure-4 to the writ petition is quashed the respondent may ask for the refund of salary, already received by him, pursuant to the interim order passed in the present writ petition. Learned counsel for the petitioner assailed the said order, con tained in Annexure-4 to the writ petition and Annexure 5' by which the promotion was cancelled, on the ground that the same was contrary to the orders passed by the learned Tribunal and, therefore, the same cannot be sustained. Sri H. N. Tripathi, learned Counsel appearing on behalf of respondent, on the other hand contends that the petitioner could not have come before this court in writ jurisdiction without exhausting his remedy under Section 98 (n) of the U. P. Co-operative Societies Act, which provides for filing an appeal from the or ders passed under Section 128 of the Act, under which the impugned notice, as con tained in Annexure-CA-1 to the counter-affidavit and Annexure-4 to the petition were issued. He next contends that the petitioner is not eligible and entitled for promotion because the alleged promotion was granted contrary to Regulations 5 (ii) (b) of 1975 Regulations. He further con tends that the order of the learned Tribunal was obtained through an illegal fraudulent compromise between the petitioner and the Chairman of the Com mittee of Management. Therefore, the order of the Tribunal cannot be sustained. He further contends that on the merit of the case the petitioner is neither eligible and entitled for promotion nor to the in crements which were sought to be given to the petitioner by means of said two resolu tions as contained in Annexures '2' and '3' to the writ petition respectively. I have heard Sri Vinod Swarup, learned Counsel for the petitioner, Sri H. N. Tripathi, learned counsel appearing on behalf of respondents and the learned standing counsel at some length. The first question that the appeal lies does not stand to reason for the simple reason that the impugned orders, being Annexures '4' and '5' to the writ petition does not come with in the purview of Section 98 of the Co- operative Societies Act, 1965 (here in after referred to as the said Act ). So far as the order contained in Annexure '4' to the petition is concerned, the same is only an order to show cause purporting to give an opportunity to the Co-operative Societies in terms of proviso to Section 128 of the said Act, by which he may require the society to reconsider the resolutions. But appeal under Section 98 (n) is provided only against an order passed by the Registrar under Section 128 annulling any resolution or cancelling any order. By the impugned order, contained in Annexure-4 to the petition, no order was cancelled neither any resolution was annulled. By the said order the resolution was pur ported to be stayed till the decision is taken.
(3.) SECTION 128 of the said Act em powered the Registrar to: " (i) annul any resolution passed by the Committee of Management or the general body of any co- operative society; or (ii) cancel any order passed by any officer of a co-operative society. If he is of the opinion that the resolution or the order as the case may be, is not covered by the objects of the society, or is in contravention of the provisions of this Act, the rules or the by-laws of the society: Provided that the Registrar shall, before making any order, require the committee of management, general body or officer of the co operative society to reconsider the resolution, with in such period as he may fix but which shall not be less than fifteen days and if he deems fit may stay the operation of the resolution or the order during such period. " In the present case, as seen from the order contained in Annexure-4, since neither any resolution was annulled nor any order was cancelled it does not fit in with in the ambit of SECTION 98 (n) of the said Act. The grant of stay pending decision under SECTION 128 proviso has not been made appealable. Therefore, the said order, Annexure-4 to the petition, cannot be said to be appealable. There fore, the contention that the remedy by way of appeal is available to the petitioner, as contended by Sri H. N. Tripathi, cannot be said to be acceptable. Therefore the contention that the remedy by way of ap peal is available to the petitioner, as con tended by Sri H. N. Tripathi, cannot be sustained. But the fact remains that by the said resolution excepting the order staying operation of the order there was nothing by which the petitioner could have been aggrieved. Sri Vinod Swarup, learned Counsel for the petitioner contends that the said show cause notice was issued long after 30 days in view of subrule (2) of Rule 130 of the U. P. Co-operative Societies Rules, 1968 (here in after referred to as the said Rules), the same cannot be sustained. But the fact remains that the notice was issued on 17- 3- 1980 whereas the resolu tion was taken on 23-2-1980. It is only '22' days after the resolution was taken. There fore, the said contention of Sri Vinod Swarup cannot be sustained Sri Vinod Swarup, further contends that in the order contained in Annexure- 4 the order dated 15-1-1980 was also included which is beyond the prescribed period under subrule (2) of Rule 130 of the said Rules. But the facts remains that the petitioner has not challenged the order dated 15-1-1980. Then again by a supplementary affidavit, as contended by Sri Vinod Swarup, learned Counsel for the petitioner it is pointed out that intimation of the resolu tion dated 18-10-1979 was given to the Deputy Registrar on 27-12-1979. There fore, it was only after '19' days namely, on 15-1-1980, Annexure-CA 1 to the counter-affidavit was issued. Thus it appears that the said order was issued well with in 30 days from the date of reference. Therefore, mere inclusion of the said order dated 15-1-1980, in the order contained in An nexure-4 to the petition, does not mean that the provision under Rule 130 was resorted to only by means of that order dated 17-3-1980 and therefore, it will not be hit by mischief of Rule 130 (2) of the said Rules. This was only in furtherance of the earlier order issued. Therefore, the contention of the learned Counsel for the petitioner cannot be accepted.;