Court No. - 38 Case :- WRIT - A No. - 70982 of 2009 Petitioner :- Vijai Shanker Mishra Respondent :- State Of U.P. & Others Petitioner Counsel :- Siddharth Khare,Ashok Khare Respondent Counsel :- C. S. C.,S. K. Singh Hon'ble Amreshwar Pratap Sahi,J.
Heard Sri Ashok Khare, learned Senior Counsel for the petitioner,
learned Standing Counsel for Respondent Nos. 1 and 2 and Sri S.K.
Singh for Respondent No.3.
The order under challenge are dated 23.9.2009 directing the petitioner
to pursue his appeal and the order of dismissal dated 11.2.2009. The
petitioner was a Secretary of Sahkari Upbhokta Bhandar at Maharajganj
under the Uttar Pradesh Sahkari Upbhokta Bhandar Kendriyit Sewa.
The petitioner was dismissed from service on 11.2.2009. Against the
said order, the petitioner preferred his claim before the Registrar under
Section 128 of the Cooperative Societies Act, 1965. The order dated
23.9.2009 redirects the petitioner to file an appeal under the provisions
of Rule 29 (4) of the Uttar Pradesh Sahkari Upbhokta Bhandar
Centralized Service Rules 1986 and the said representation has been
directed to be treated as an appeal within time.
Sri Khare contends that as a matter of fact the impugned order of
dismissal itself is liable to be set aside as it proceeds on erroneous
assumptions of fact and law and further there was no occasion for the
Registrar to have converted the representation into an appeal and send
it to the appropriate authority. For this, Sri Khare contends that exercise
of power under Section 128 is an independent power and it is not
necessary that the petitioner should file an appeal against the order of
dismissal. He further submits that the appeal has to be decided by the
State cadre authority where the Chairman and the Member Secretary
are the same persons who are the Chairman and Member Secretary of
the Administrative Committee. In view of this, the contention is that this
exercise of entertaining an appeal would be illusory as these 2 persons
would be hearing an appeal against their own orders.
I have considered the aforesaid aspect of the matter and the rules which
are applicable defining the constitution of the State Cadre Authority and
the Administrative Committee are contained in Rule 5 of the Uttar
Pradesh Sahkari Upbhokta Bhandar Centralized Service Rules 1986.
Rule 5 prescribes the constitution of the State Cadre Authority and it is
evident that apart from the Chairman and the Member Secretary, there
are 4 other Members who are distinct from the Members of the
Administrative Committee. The aforesaid provision, therefore, makes it
amply clear that the entire constitution of the Committee is different from
that of the Administrative Committee. The aforesaid constitution,
therefore, being different, it cannot be said that the same decision would
be taken by the appellate authority merely because the Chairman and
the Secretary are the same. Further there is a doctrine known as the
Doctrine of Necessity. The appellate authority is constituted under the
Rules. There is no challenge to the validity of the Rules. In this view of
the matter, this being a rule of necessity, it cannot be said that the
exercise would be illusory. It is well settled that if the Statute provides
for a forum of appeal then the said forum of appeal cannot be either
altered or changed merely because there is a possibility of affirmance of
the order under challenge. In this view of the matter, I am not inclined to
interfere with the impugned order dated 11.2.2009 and the order dated
23.9.2009.
This writ petition is, accordingly, dismissed with the liberty to the
petitioner to pursue his appeal as directed under the order dated
23.9.2009.
Order Date :- 5.1.2010
Irshad