Rahul Ganpat Jaware vs The State Of Maharashtra And ...
2016 Latest Caselaw 1808 Bom

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     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                        
                          WRIT PETITION NO.161 OF 2016




                                                
     Rahul Ganpat Jaware                                         PETITIONER
     Age - 31 years, Occ - Certified Auditor
     R/o Khirdi (K) Taluka - Raver,
     District - Jalgaon




                                               
              VERSUS

     1.       State of Maharashtra                           RESPONDENTS




                                      
              Through Commissioner for
              Co-operation and Registrar
                             
              Co-operative Societies,
              Maharashtra State, Pune

     2.       District Deputy Registrar,
                            
              Co-operative Societies, Jalgaon

     3.       Assistant Registrar,
              Co-operative Societies, Jalgaon
      


     4.       Special Auditor, Class I
   



              Co-operative Societies, Jalgaon

                                    .......

Mr. S. S. Bora, Advocate for the petitioner Mr. G. O. Wattamwar, AGP for respondent-State

.......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 25th APRIL, 2016 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

2. The petitioner, aggrieved by order dated 3rd December,

2015 passed by Commissioner of Co-operation and Registrar, Co-

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operative Societies invoking powers under section 81 and Rule

69 (G) of the Maharashtra Co-operative Societies Act, 1960 and

Maharashtra Co-operative Societies Rules, 1961, respectively,

removing the petitioner's name from the list of panel of auditors

for a period of next five years.

3. Mr. Bora, learned advocate for the petitioner submits that

aforesaid impugned order is untenable being in breach of noble

principles of natural justice. No notice whatsoever has been

given to the petitioner about any action being mooted for

removal of his name from the panel of auditors for the reasons

as have been referred to in the impugned order. Learned

advocate further submits that an action is being taken against

the present petitioner with reference to observations in a report

submitted by special auditor wherein he purportedly indicts the

petitioner for neglecting / faltering in performance of his duty.

The action has been based solely on the report and without any

opportunity to the petitioner to explain the correctness or

otherwise of the observations appearing in the special report. He

submits that in the absence of an opportunity and explanation

from the petitioner, invoking powers with reference to section 81

of the Act and Rule 69 (G) of the Rules, is highly improper,

without following the doctrine of audi alterm partem, high

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handed and unsustainable. He supports his contention with an

order of division bench dated 25 th February, 2016 passed in writ

petition No.1518 of 2016, which according to him has been

passed in respect of a person who is similarly situated as the

petitioner.

4. Mr. Wattamwar, learned AGP, however, contends that it

cannot be said to be case of stark breach of principles of natural

justice for, before taking action, notice had been given to the

petitioner giving inkling to him that its fallout would be

impugned order in the present petition. He, for said purpose,

purported to refer to a communication dated 7th March, 2014

with reference to section 81 (1) (c) of the Act, calling upon

explanation from the petitioner as to why the petitioner should

not be held jointly responsible for misappropriation and as to

why he should not be criminally prosecuted. According to learned

AGP said communication had been refused to be accepted by the

petitioner, which would tantamount to a good service. He,

therefore, submits that it would not be a case as contended by

learned advocate for the petitioner, of breach of principles of

natural justice.

5. Learned AGP further goes on to justify the impugned order

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referring to certain alleged acts and omissions on the part of the

petitioner with reference to certain observations as are

appearing in the special report.

6. The position as such, emerges that if at all an action can

be said to have been mooted against present petitioner, that was

with reference to fixing of liability on the petitioner and about

criminal prosecution, no notice appears to have been given to

the petitioner about him being de-listed from the panel of

auditors. Having regard to contentions on behalf of the petitioner

that de-listing has disastrous consequences as far as petitioner's

profession is concerned, would be required to be taken into

account. In the circumstances and having regard to that no

notice has been given to the petitioner in respect of him being

removed from the panel of auditors maintained by the

respondents and further having regard to that in case of a

similarly situated person division bench of this court has passed

an order, relevant extract of which reads thus -

"3. On perusal of the order, it appears that, the same has been issued

without extending an opportunity of hearing to the petitioner. The petitioner has also stated on oath that the Commissioner for Co- operation, before issuing the impugned order has not extended opportunity of hearing to the petitioner. Since the impugned order has been issued without observing the principles of natural justice, the same deserves to be quashed and set aside.

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4. It would be open for the Commissioner for Co-operation to pass appropriate orders after extending opportunity of hearing to the

petitioner. The notice in respect of proposed action shall also have to be served on the petitioner well in advance.

5. In view of above, the petition is allowed. The order dated 3.12.2015, issued by the Commissioner for Co-operation and Registrar of

Co-operative Societies, Maharashtra State, Pune is quashed and set aside. The matter stands remitted back to the concerned authorities. As has been stated above, before passing any order, the concerned

respondent shall extend an opportunity of hearing to the petitioner and the action shall be preceded by an appropriate notice indicating the

action proposed to be taken against the petitioner."

it would expedient that the petitioner's case would also be

governed by a similar order.

7. Writ petition as such, stands allowed by quashing and

setting aside the impugned order dated 3 rd December, 2015 at

Exhibit-E to the petition. The matter stands remitted to the

concerned authority. Before taking any decision, concerned

respondent shall extend an opportunity of hearing to the

petitioner. Action be preceded by appropriate notice indicating

action proposed to be taken against the petitioner. Rule is made

absolute in aforesaid terms with no order as to costs.

[SUNIL P. DESHMUKH, J.] drp/wp161-16