Bhiwapur Taluka Shetki Sahakri ... vs Abdul Salam Abdul Hafiz Sheikh
2009 Latest Caselaw 13 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
                           NAGPUR BENCH:NAGPUR




                                                                               
                        WRIT PETITION NO.2122 OF 2001




                                                       
PETITIONER:
      Bhiwapur Taluka Shetki Sahakri Kharedi Vikri Samit Limited Bhiwapur, Tq.
      Bhiwapur, district : Nagpur, through its Vice President Shri Bhaskarrao s/o




                                                      
      Bhauraoji Yengle, aged about 40 years, occupation: agriculturist, r/o
      Chikhalapar, Tq. Bhiwapur, District : Nagpur
                                      VERSUS



                                             
RESPONDENTS:                    
1]    Abdul Salam Abdul Hafiz Sheikh, aged about 41 years, r/o Bhiwapur,
      Gurudeo Ward, Bhiwapur, Tahsil Bhiwapur, District ; Nagpur.
                               
2]    Assistant Registrar, Cooperative Societies, Umred Tahsil Umred,District :
      Nagpur.
             

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Shri V.D. Raut, advocate for the petitioner
Shri D.V. Chauhan, advocate for respondent.1
Smt. Sharda Wandile, A.G.P. for respondent no.2





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CORAM: SMT. VASANTI A. NAIK, J.

DATE: DECEMBER 07, 2009

ORAL JUDGMENT

By this petition, the petitioner challenges the order passed by the Assistant

Registrar, Cooperative Societies, Umred on 17.3.2001 allowing the appeal filed by

the respondent no.1 and directing the petitioner to reinstate the respondent no.1 in

service.

2] The petitioner is a cooperative society registered under the Maharashtra

Cooperative Societies Act. The respondent no.1 was working as a Manager with the

said society. After holding a departmental enquiry against the respondent no.1, the

respondent no.1 was dismissed form service w.e.f. 11.1.2001. The respondent no.1

challenged the order of dismissal in a departmental appeal before the Assistant

Registrar, Cooperative Societies, Umred. After hearing the parties, the Assistant

Registrar, Cooperative Societies, Umred allowed the appeal filed by the respondent

no.1 and directed the petitioner to reinstate the respondent no.1 in service.

3] Shri V. D. Raut, the learned counsel for the petitioner submitted that the

Assistant Registrar, Cooperative Societies, Umred had no jurisdiction to entertain

and decide the appeal. The learned counsel for the petitioner submitted that against

the order of his suspension, the respondent no.1 had filed a dispute under section 91

of Act before the Cooperative Court and it was necessary for the respondent no.1 to

file a dispute under section 91 of the Act of 1960 before the Cooperative Court

against the order of his dismissal. The learned counsel for the petitioner relied on the

decisions reported in 1998 (3) Mh.L.J.Page 214 and 2007(12) SCC Page 764, to

substantiate his submission. The learned counsel for the petitioner submitted that

there was no reason for the Assistant Registrar to interfere with the findings

recorded by the Enquiry Officer. The learned counsel for the petitioner then

submitted that the Assistant Registrar, was not justified in holding that the

respondent no.1 was given only three days time to file reply and that the Enquiry

Officer was not justified in deciding all the charges together.

4] Mrs. Wandile, the learned A.G.P., appearing on behalf of the Assistant

Registrar, supported the order passed by the Assistant Registrar on 17.3.2001 and

submitted that it was apparent from the record of the enquiry proceedings that there

was a haste on the part of the petitioner to oust the respondent no.1 from service and

since the evidence on record clearly failed to point out to the guilt of the respondent

no.1, the appellate authority rightly held that the action of dismissal was arbitrary

and illegal. The learned Assistant Government Pleader then submitted that the

extract of the service rules annexed to the petition clearly show that the appeal

against an order of dismissal would lie before the Assistant Registrar, Cooperative

Societies, Umred and hence the respondent no.1 had rightly filed an appeal before

the Assistant Registrar. The learned AGP sought for the dismissal of the writ

petition.

5] Shri D.V.Chauhan, the learned counsel for the respondent no.1 also supported

the order passed by the Assistant Registrar on 17.3.2001 and submitted that though

some of the reasons recorded by the Assistant Registrar for allowing the appeal may

not be just and proper, it is clear from the evidence on record, particularly the

evidence of the Cashier, as has been observed by the Assistant Registrar that the

respondent no.1 was innocent in the matter and the findings of the Enquiry Officer

were perverse. The learned counsel for the respondent no.1 then submitted that

though the order does not reveal that the evidence of all the witnesses was

considered, on a perusal of the evidence of the star witnesses examined on behalf of

the petitioner, it is clear that the respondent no.1 was not guilty of the charges

leveled against him and the findings recorded by the Enquiry Officer were arbitrary

and illegal. The learned counsel for the respondent no.1 submitted that in case this

court is of the view that the evidence perused by this court supports the ultimate

finding recorded by the Assistant Registrar, this court may not interfere with the

order passed by the Assistant Registrar on 17.3.2001, merely because some of the

reasons recorded by the authority are not reasonable and the evidence of some of the

material witnesses was not considered or discussed by the Assistant Registrar. The

learned counsel for the respondent no.1 sought for the dismissal of the writ petition.

6] I have considered the submissions made on behalf of the parties and also

perused the impugned order along with other material which is placed on record.

The first submission made on behalf of the petitioner challenging the jurisdiction of

the Assistant Registrar, to decide the appeal is liable to be rejected for the simple

reason that this ground or plea is an afterthought and the same is not raised by the

petitioner in the writ petition. In fact it is averred in the writ petition that the

respondent no.1 had challenged the order of dismissal before the Assistant Registrar

as per bye-laws on 18.1.2001. This averment in paragraph 1 of the writ petition

clearly shows that the petitioner had no objection to the hearing of the appeal by the

Assistant Registrar and has raised this ground for the first time at the time of

hearing. Moreover, this court had in Writ Petition No.377/2001 directed the

Assistant Registrar to decide the appeal of the respondent within a period of one

month. The petitioner had initiated action against respondent no.1 under the service

rules and clause 9 of the service rules, clearly provides for an appeal before the

Assistant Registrar, Cooperative Societies, Umred. It appears that the appeal was

filed before the Assistant Registrar, in view of the provisions of appeal under the

service rules of the cooperative society. The submission made on behalf of the

petitioner that initially the respondent no.1 had challenged the order of his

suspension before the Cooperative Court and therefore, he ought to have challenged

the order of his dismissal also before the Cooperative Court is liable to be rejected,

for the reason that the service rules do not provide for an appeal against the order of

suspension and in such circumstances, the respondent no.1 had no other alternative

but to approach the Cooperative Court against the order of his suspension. Once

having relied on the same service rules for the purpose of initiating enquiry against

the respondent and for dismissing him from service, the petitioner cannot be

permitted to canvass that the respondent no.1 can not take the benefit of the

provision of appeal under the service rules. Since the provisions of rule 9(1) of the

Employees Service Rules of the petitioner society provide for an appeal against the

order of the dismissal of its employee before the Assistant Registrar, Cooperative

Societies, Umred, the first submission made on behalf of the petitioner is liable to be

rejected.

7] There is some force in the submission made on behalf of the petitioner that the

Assistant Registrar, was justified in holding that that the Enquiry Officer could not

have decided all the charges together as a combined reading of the charges results in

one main charge of non payment of Hamali Charges amounting to Rs.35,777.85 ps.

The learned counsel for the respondent no.1 has also fairly conceded that the

Assistant Registrar may not be right in allowing the appeal on this ground or also on

the ground that the respondent no.1 was granted only three days time to file reply.

8] On perusal of the order passed by the Assistant Registrar, it is clear that the

Assistant Registrar has not considered the evidence of all the witnesses examined on

behalf of the petitioner society to prove the charges against the respondent no.1 or at

least consideration of evidence of all the witnesses is not reflected from the perusal

of the order passed by the Assistant Registrar on 17.3.2001. Several witnesses were

examined by the petitioner to prove the charges against respondent no.1. The

appellate authority has merely referred to the evidence of the Cashier for holding

that the action of the dismissal was arbitrary and illegal. It was necessary for the

Assistant Registrar to consider the evidence of the other witnesses along with the

evidence of the Cashier before deciding the appeal filed by the respondent no.1.

Though there is some substance in the submission made on behalf of respondent no.

1, that there is hardly any material to prove the guilt of the respondent no.1; it would

not be proper for this court to scrutinize the entire evidence in the enquiry

proceedings in exercise of the writ jurisdiction. In such circumstances, in the interest

of justice, it would be just and proper to remand the matter to the Assistant Registrar

for deciding the departmental appeal afresh on merits and in accordance with law.

9] In the result, the writ petition is partly allowed. The impugned order passed by

the Assistant Registrar, Cooperative Societies Umred on 30.3.2001 is hereby

quashed and set aside. The matter is remanded to the Assistant Registrar

Cooperative Societies Umred for deciding the same on merits and in accordance

with law. The Assistant Registrar is directed to decide the appeal as early as

possible and within a period of four months from the date of appearance of the

parties before the Assistant Registrar. The parties undertake to appear before the

Assistant Registrar on 21.12.2009 so that issuance of individual notices to the

parties could be dispensed with. Rule is made absolute in the aforesaid terms with

no order as to costs.

JUDGE

SMP.