- (1.) D. K. Seth, J. The petitioner's ser vices were terminated on the basis of an enquiry report held against him in a domestic enquiry by an order of dismissal dated 14-9-1979. Out of the self-same al legation, a criminal case was also initiated against the petitioner.
(2.) REGULATION 70 of the Co-operative Federal Authority (Business) REGULATION, 1976 provides for an appeal within 90 days further providing extension of the period by a further period of 30 days and there after no appeal could be entertained by the appellate authority. Whereas the petitioner has filed an appeal on 24-2-1982. The petitioner had attained the age of superannuation on 30-9-1982. Though the appeal was taken up earlier by the appellate authority but the same could not be decided. Ultimately by an order dated 6-9-1982 the appellate authority had kept the appeal in abeyance in view of the pen dency of the criminal case. After the, petitioner had submitted the order of the criminal court acquitting him, the appeal was decided on 14-9-1994 which was com municated by a letter dated 6 12- 1994 which is Annexure 1 to the writ petition. By the said order while disposing of the appeal, the order of termination was treated to be ineffective and during the period of suspension, it was held that the petitioner was entitled to the suspension. allowance only while salary for the period between the date of termination and the date of retirement was treated to be as on no work no pay. This order has since been challenged in this writ petition. Mr. Pankaj Bhatia, learned Coun sel for the petitioner contends that since the petitioner has been exonerated from the charges by virtue of the fact that the appeal was allowed, therefore, the appel late authority was wholly without jurisdic tion to pass an order of no work no pay. He relies on the decision in the case of Union of India and others v. K. V. Jankiraman and others, 1991 (4) SCC109. He contends that the appellate authority has no jurisdiction to substitute the punishment as it is not an order of punishment. It is in effect a decision that since the petitioner did not work during the said period, therefore, he should be treated to be as on no work no. pay. The said decision not being a punishment is wholly outside the scope of juris diction of the authority. Such question can be decided only by the authority incharge of the general administration and not by the disciplinary authority. Relying on paragraphs 25 and 26 of the decision in the K. V. Jankiraman (supra), he contends that since the decision of the appeal was delayed at the instance of the appellate authority and not on account of, latches on the part of the petitioner, he cannot be blamed for the same and be deprived of the salary for the period during which the ap peal remain pending in view of the ratio decided in the said decision. Therefore, he prays that the salary for the period be tween the date of termination of service and till his retirement should be paid to him together with all other service benefits. Mr. K. N. Mishra, learned Counsel for respondents, on the other hand con tends that it was only on sympathetic ground that the petitioner had been retired during pendency of the appeal and that he was exonerated from the criminal proceeding, the appellate authority had taken a lenient view though the appeal was time barred and could not be entertained by reason of Regulation 70 of the Regula tion, therefore, the petitioner cannot claim any legal right on the basis of the said order. He further contends that the order though seems to be a decision but in effect having been passed by the appellate authority on the basis of the finding that the petitioner was guilty of depositing the money of the society in false account and withdrawing the same there from and that he was guilty of negligence and commit ting of irregularities though he was relieved of the charges of embezzlement, therefore, the punishment of termination was substituted by two punishments namely he will not be entitled to get any amount except the suspension allowance during the period of suspension and that he will not be paid any salary for the rest of the period. Therefore, the ratio decided in the case of K. V Jankiraman (supra) does not apply. He relies on the decision in the case of Ram Chandra Dixit v. Deputy Registrar, Co-operative Societies, 1980 UPLBEC 325, in order to contend that the petitioner was governed by the said 1976 Regulation with a view to counter the contention of Mr. Pankaj Bhatia that the petitioner is not covered by the said regulation. He also relies on the decision in the case of Pareshwar Dayal Shukla v. Deputy Registrar, Co-operative Society and others, 1982 UPLBEC 398, in order to support the same contention. On these grounds he submits that the writ petition should be dismissed.
(3.) I have heard both Mr. Pankaj Bhatia and Mr. K. N. Mishra as well as Mr. K. R. Singh, learned Standing Counsel at length. The question that the petitioner is not covered by the said Regulation 70 of 1976 Regulation need not be gone into in view of the fact that the petitioner himself has preferred the appeal under Section 70 of 1976 Regulation. Once the petitioner has taken resort to the provisions of the appeal contained in the said regulation pursuant to the disciplinary proceeding held against him as is contemplated in the said regulation, he is estopped from con tending that he is not governed by the said Regulation. At the same time, the petitioner has been relying on the very decision of the appellate authority in order to claim benefit out of the said order which has been passed under Regulation 70 of the said Regulation, therefore, he is precluded from contending that he is not covered/governed under the said Regula tion. Be that as it may. Admittedly, the petitioner being a supervisor as held in the decisions cited by Mr. Mishra, he is governed and covered by the said Regula tion. There cannot be any second opinion about the same.;