Agricultural Produce Market ... vs Honable Minister For Co-Op., ...
2016 Latest Caselaw 3561 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH




                                                                                        
                               NAGPUR.

                      WRIT    PETITION     NO.    1934     OF     2015




                                                                
    Agriculture Produce Market 




                                                               
    Committee, through its 
    Chairman, Hivraj Shyamrao
    Sherki, Tah. Sawli, Distt. 
    Chandrapur.                                                              PTITIONER.




                                                
                                                VERSUS

    1] The Hon'ble Minister for
    Cooperation, Marketing & 
                              
    Textile Industries, Department
    of Cooperation, Marketing & 
                             
    Textile Industries Hutatma 
    Rajguru Chowk, Madam Cama
    Road, Mantralaya Annexe,
    Mumbai-32. 
      


    2] The Deputy Registrar,
   



    Cooperative Societies,
    Chandrapur. 

    3] Dada Deklu Sidam,
    R/o Sawli, Distt. Chandrapur.                                            RESPONDENTS.

Shri Anand Parchure, Advocate for the petitioner. Shri K. L. Dharmadhikari, Assistant Government Pleader for respondent nos. 1 & 2.

Shri D. V. Siras, Advocate for the respondent no. 3.

                              CORAM:     A. S. CHANDURKAR  J.
                               
                                      Dated    :   JULY  04, 2016.

    ORAL JUDGMENT: 


                   Rule.     Heard   finally   with   consent   of   learned   counsel   for   the





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    parties. 




                                                                                            
    2]             The question that arises in this writ petition is whether the order




                                                                   

of suspension inflicted upon an employee pending enquiry proceedings could

be treated to be an order of punishment by itself so as to dis-entitle the

employer from imposing any punishment after conclusion of the enquiry

proceedings?

3] The facts relevant for adjudication of the writ petition are that

the respondent no.3 was appointed as a Clerk with the petitioner-Market

Committee in the year 1986. Subsequently he was promoted to the post of

Accountant. During the course of employment on noticing certain

irregularities the respondent no. 3 was placed under suspension by an order

dated 15.10.2011. Thereafter enquiry proceedings were held and on that

basis the punishment of removal from service came to be imposed by order

dated 02.06.2012. The respondent no.3 filed an appeal under provisions of

Rule 104 of the Maharashtra Agricultural Produce Marketing (Development

& Regulation) Rules, 1967 (for short, the said Rules). The Divisional Joint

Registrar held that the respondent no.3 was suspended from service prior to

the holding of the enquiry. This suspension continued for a long period. On

that basis it was held that a further punishment of removal from service could

not have been imposed. Hence the order of removal was set aside and the

respondent no. 3 was directed to be reinstated in service. In further appeal

filed before the State Government this order came to be confirmed and the

appeal was dismissed.

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4] Shri Anand Parchure, the learned counsel for the petitioner

submitted that the Divisional Joint Registrar, Cooperative Societies as well as

the Hon'ble Minister who heard the appeal filed under Rule 104 of the said

Rules were not justified in holding that the earlier order of suspension dated

15.10.2011 amounted to an punishment in itself due to which the order

removing the respondent no.3 from service was held to be illegal. He

submitted that the order of suspension clearly mentioned that the same was

for the purposes of holding a departmental enquiry and it was not imposed

by way of any punishment. Even if it was assumed that the order of

suspension continued for a considerable period, the same would not amount

to imposition of a punishment by itself. According to him under Rule 102(v)

of the said Rules suspension in itself was a separate punishment and so was

the order of removal. He then submitted that the services of the respondent

no.3 were rightly terminated in view of serious irregularities committed by

him during the course of service. He referred to the report of the Enquiry

Officer and pointed out the gravity of charges against the respondent no.3.

He, therefore, submitted that the impugned orders were liable to be set aside

and the order of removal from service deserved to be maintained.

5] Shri D. V. Siras, learned counsel for the respondent no.3

supported the impugned order. According to him both the Authorities were

justified in holding that the suspension of respondent no.3 was by way of

punishment and therefore there could not have been a subsequent order of

removal from service by way of punishment. According to him the order of

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suspension of the respondent no.3 was for a period exceeding one month

and it was contrary to the provisions of Rule 100(vi) of the said Rules. He,

therefore, submitted that both the Authorities were justified in holding that

as the respondent no.3 was under suspension for a considerable period, the

further punishment of removal from service was not warranted.

Shri K. L. Dharmadhikari, the learned Assistant Government

Pleader for the respondent nos. 1 and 2 also supported the impugned orders.

6] I have given due consideration to the respective submissions. The

documents filed on record indicate that when the respondent no.3 was

discharging duties on the post of Accountant, it was noticed by the petitioner

that he had committed various financial irregularities. On that basis the

Market Committee passed a Resolution on 27.8.2011 proposing to hold an

enquiry against the respondent no.3 by keeping him under suspension. The

order of suspension refers to the aforesaid fact and also refers to the

appointment of the Enquiry Officer who was directed to complete his enquiry

within a period of thirty days on the charges levelled against the respondent

no.3.

7] The power of an employer to place an employee under

suspension pending enquiry cannot be doubted. The provisions of Rule

100(vi) of the said Rules contemplate that no person in service of the Market

Committee can be suspended for a period exceeding one month without the

previous approval of the Director or any Officer authorised by him. Rule 102

of the said Rules stipulates various penalties that can be imposed upon any

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officer or servant of the Market Committee. The penalties include

withholding of increments or promotion, suspension, removal from service

and dismissal from service. Under Rule 103 of the said Rules no employee

can be dismissed, removed or reduced in rank without holding an enquiry.

The penalty of suspension can be imposed by the Market

Committee but for doing so holding of an enquiry under Rule 103(1) of the

said Rules has not been contemplated. Only if the services of a person are to

be dismissed, removed or reduced in rank that holding of an enquiry prior

thereto is contemplated. If in the light of this position, the order of

suspension dated 15.10.2011 is perused, it is clear that the same is an order

of suspension pending holding of departmental enquiry. It is also undisputed

that such departmental enquiry was held against the respondent no.3. Thus,

this order of suspension pending enquiry cannot be read to be an order

imposing penalty of suspension as contemplated by Rule 102(v) of the said

Rules.

8] In the appeal filed by the respondent no. 3 challenging the order

of dismissal from service the Divisional Joint Registrar has held that the

respondent no.3 had been suspended by order dated 15.10.2011 and as he

remained under suspension for almost seven and half months, that by itself

was sufficient punishment. The said Authority further observed that in these

facts a further punishment of removal from service was not warranted. The

Market Committee in its appeal preferred before the Hon'ble Minister

disputed this position and justified the order of removal. However, the order

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passed by the Divisional Joint Registrar came to be confirmed. It is thus

apparent that both the Authorities completely misdirected themselves by

holding that the order of suspension pending departmental enquiry was itself

by way of punishment and on that count set aside the order of removal.

Merely because the respondent no.3 remained under suspension for a period

of seven and half months which was contrary to the provisions of Rule

100(vi) of the said Rules as there was no prior approval of the Director or

any officer authorised by him, the same cannot partake the character of an

independent punishment by itself. The manner in which the period of

suspension beyond the maximum period permissible was to be treated was a

matter to be considered independently and in the light of the by-laws of the

Market Committee. The same however cannot amount to a punishment by

itself so as to preclude the Market Committee from imposing any punishment

pursuant to the departmental enquiry.

As it has been found that both the Authorities have considered

the order of suspension pending enquiry as a punishment by itself which view

has not been found to be correct, it would be necessary to direct the

Divisional Joint Registrar, Cooperative Societies Nagpur to reconsider the

appeal filed by the respondent no.3 challenging the order of removal dated

02.06.2012 afresh and in the light of observations made in the judgment.

In view of aforesaid reasons, the following order is passed:

i] The orders dated 24.09.2013 passed by the Divisional Joint

Registrar Cooperative Societies, Nagpur as well as the order dated

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13.03.2015 passed by the State Government are set aside.

ii] The proceedings are remanded to the Divisional Joint

Registrar, Cooperative Societies, Nagpur for deciding the appeal filed by the

respondent no.3 afresh and in the light of observations made in the order.

iii] The parties shall appear before the Divisional Joint Registrar,

Cooperative Societies, Nagpur on 19.07.2016. The said appeal be decided

within a period of three months from said date.

Rule is made absolute in aforesaid terms. No costs.

JUDGE

svk

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