Bhiwapur Taluka Shetki Sahakari ... vs Abdul Salam Abdul Hafiz Sheikh And ...
2021 Latest Caselaw 11216 Bom

     LPA 594-10                                        1                        Judgment

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 594/2010 IN WRIT PETITION NO.2244/2010 (D)

     Bhiwapur Taluka Shetki Sahakari Kharedi
     Vikri Samiti Limited, Bhiwapur, Tq. Bhiwapur,
     Distt. Nagpur.                                                        APPELLANT
                                       .....VERSUS.....
     1.    Abdul Salam Abdul Hafiz Sheikh,
           Aged about 50 years, R/o Gurudeo Ward,
           Bhiwapur, Tq. Bhiwapur, Distt. Nagpur.

     2.    Asstt. Registrar, Co-operative Societies,
           Umred, Tq. Umred, Distt. Nagpur.                             RESPONDENTS

                        Shri V.D. Raut, counsel for the appellant.
          Shri H.A. Khedikar, Advocate with Shri D.V. Chauhan, counsel for the
                                    respondent no.1.

     CORAM : A. S. CHANDURKAR AND G.A. SANAP, JJ.

     DATE      : 18TH AUGUST, 2021.
     ORAL JUDGMENT              (PER : A.S. CHANDURKAR, J.)

By this appeal, challenge is raised to the judgment of the

learned Single Judge dated 20.09.2010 in Writ Petition No.2244 of 2010.

By that judgment the challenge raised by the appellant to the order dated

14.02.2010 passed by the Assistant Registrar, Co-operative Societies,

Umrer has been negatived.

2. Facts in brief are that it is the case of the respondent no.1 that

he was engaged as a Manager by the appellant-Society. During the

course of employment, the Society held an enquiry in view of the conduct

of the respondent no.1 and he came to be suspended by resolution dated

LPA 594-10 2 Judgment

09.08.2000. The respondent no.1 filed dispute before the Co-operative

Court under Section 91 of the Maharashtra Co-operative Societies Act,

1960 (for short, 'the Act of 1960') challenging that order of suspension.

The Co-operative Court refused to grant any interim relief and hence the

respondent no.1 preferred a miscellaneous appeal wherein exparte order

of stay was granted. The Society therefore approached this Court in Writ

Petition No.3112 of 2000 and on 08.09.2000 this Court directed the

Appellate Court to decide the appeal expeditiously. In the meanwhile on

27.12.2000 the Enquiry Officer submitted the enquiry report and

accepting the same the Society on 11.01.2001 proceeded to dismiss the

respondent no.1 from service.

3. The respondent no.1 on the basis of the bye-laws of the

Society and especially Clause 9 thereof proceeded to file an appeal before

the Assistant Registrar, Co-operative Societies, Umrer challenging the

order of dismissal. The Assistant Registrar by his order dated 14.02.2010

recorded a finding that the enquiry held against the respondent no.1 was

contrary to the principles of natural justice and that the respondent no.1

did not have adequate opportunity to defend himself. On that count, the

appeal filed by the respondent no.1 was allowed and the order of

termination dated 11.01.2001 was set aside. Consequently the services

of the respondent no.1 were directed to be reinstated. This order was

LPA 594-10 3 Judgment

challenged by the Society in Writ Petition No.2244 of 2010 and by the

impugned judgment the learned Single Judge was pleased to dismiss that

writ petition.

Hence, the present appeal.

4. Shri V.D. Raut, learned counsel for the appellant submitted

that the Assistant Registrar committed an error of jurisdiction in directing

reinstatement of the respondent no.1. According to him, under the Act of

1960 there was no jurisdiction either with the Co-operative Court or with

any of the Authorities under the said Act to direct reinstatement of the

services of an employee who has been terminated from service. The only

relief that could be granted would be grant of damages or compensation

for wrongful termination of services and it was only the Civil Court which

was competent to do so. In that regard he referred to the decision in

Maharashtra State Co-operative Housing Finance Corporation Ltd.

Versus Prabhakar Sitaram Bhadange [2017 (6) Mh.L.J. 365 (SC)].

Without prejudice to the aforesaid it was submitted that since it was the

case of the respondent no.1 that he was employed as a Manager he was

not in a position to file an appeal under Clause 9 of the bye-laws. That

provision was applicable only to the employees of the Society and not to

persons holding managerial post. He submitted that these contentions

were raised before the learned Single Judge but the same were not

LPA 594-10 4 Judgment

considered for no justifiable reason. He further submitted that despite

the fact that the respondent had attained the age of superannuation in

April-2012 he was reinstated in service in view of the interim orders

passed on 25.02.2013. He discharged duties till April-2016 and in these

facts no further relief could be granted to the respondent no.1. The

learned counsel also referred to the following judgments in support of his

contentions:-

a. Executive Committee of Vaish Degree College, Shamli &

Others Versus Lakshmi Narain & Others [AIR 1976 SC 888].

b. State Bank of Patiala Versus S.K. Sharma [(1996) 3 SCC

364].

c. Chairman and MD United Commercial Bank & Others Versus

P.C. Kakkar [(2003) 4 SCC 364].

d. Damoh Panna Sagar Rural Regional Bank & Others Versus

Munna Lal Jain [2005 I CLR 821].

e. State of U.P. Versus Sheo Shanker Lal Srivastava & Others

[(2006) 3 SCC 276].

f. Hariram Tukaramji Ambulkar & Others Versus Bhatkuli

Taluka Sahakari Shetki Kharedi Vikri Sanstha Ltd., Amravati & Another

[2007(2) Mh.L.J. 693].

g.                Kishore Narayanrao Bomble Versus Bank of Maharashtra,

Pune & Others [2009 (6) Mh.L.J. 997]





 LPA 594-10                                  5                          Judgment

5. On the other hand Shri H.A. Khedikar, learned counsel for the

respondent no.1 supported the impugned order. According to him since

it was found that the enquiry proceedings were vitiated the Assistant

Registrar was justified in directing reinstatement of the services of the

respondent. Grave prejudice had been caused to the respondent no.1 by

holding an enquiry in an illegal manner. The respondent no.1 had been

kept away from service in a manner not in accordance with law and the

Assistant Registrar who was duly empowered under Bye-Law 9 to

entertain the appeal had directed reinstatement of his service. Once it

was found that the enquiry was vitiated as a natural consequence the

respondent no.1 was entitled to be reinstated. He further submitted that

the respondent no.1 approached the Assistant Registrar in view of the

bye-laws of the Society itself and hence it was not open for the Society to

now contend that the Assistant Registrar had no jurisdiction in the matter.

The order passed by the Assistant Registrar and thereafter the learned

Single Judge met the ends of justice and hence no interference in the

same is called for. He thus submitted that the appeal was liable to be

dismissed.

6. We have heard the learned counsel for the parties at length

and we have perused the material placed on record. We have also given

due consideration to the rival submissions of the parties. It is undisputed

LPA 594-10 6 Judgment

that the respondent no.1 who was working as Manager with the

appellant-Society was dismissed from service on 11.01.2001 after holding

an enquiry. The respondent no.1 by relying upon bye-law no.9 of the

Society filed a departmental appeal before the Assistant Registrar, Co-

operative Societies, Umrer. That appeal was initially allowed on

17.03.2001 and the Society challenged that order by filing Writ Petition

No.2122 of 2001. The learned Single Judge by the judgment dated

07.12.2010 partly allowed that writ petition and set aside the order

passed by the Assistant Registrar, Co-operative Societies, Umrer on the

ground that the entire evidence on record was not considered. The

proceedings were again remanded for fresh adjudication. Thereafter on

14.02.2010 the Assistant Registrar reconsidered the appeal and allowed

the same by holding that the order of dismissal dated 11.01.2001 was

contrary to law and that the enquiry proceedings were not held by

following the procedure prescribed. The services of the respondent no.1

were directed to be reinstated. This order was then challenged by the

Society in Writ Petition No.2244 of 2010 and the learned Single Judge on

20.09.2010 dismissed that writ petition.

7. The effect of the order by the Assistant Registrar on

14.02.2010 was of quashing the order of dismissal dated 11.01.2001

passed by the Society and pursuant to the enquiry held. It has been

LPA 594-10 7 Judgment

found that the enquiry was conducted in a manner not provided by law.

The learned Single Judge has considered this aspect and has recorded a

finding in paragraph 6 of the impugned judgment that the enquiry

conducted was in breach of the principles of natural justice and the

evidence recorded was liable to be discarded. Though the learned

counsel for the appellant sought to urge that these findings should be

revisited by relying upon the decisions in S.K. Sharma, P.C. Kakkar,

Munna Lal Jain and Sheo Shanker Lal Srivastava & Others (supra), we are

not inclined to re-examine that contention. The reasons assigned in

paragraph 6 of the judgment of the learned Single Judge suffice the

purpose and we are in agreement with that finding.

8. On the question whether the Assistant Registrar could have

directed reinstatement of the services of the respondent no.1 after setting

aside the order of dismissal it was submitted by relying upon the

decisions in Executive Committee of Vaish Degree College Shamli and

Prabhakar Sitaram Bhadange (supra) that such relief of reinstatement

could not have been granted in favour of the respondent no.1. This

contention is liable to be accepted for the reason that it is a settled legal

position in the light of the aforesaid two decisions that a contract of

personal service cannot be specifically enforced especially in proceedings

under the Act of 1960. A service dispute between employees of a Co-

LPA 594-10 8 Judgment

operative Society and its Management would not fall within the

provisions of Section 91 of the Act of 1960 and hence would not be a

dispute that could be entertained by the Co-operative Court. For the

same reason the Assistant Registrar who is an Authority under the Act of

1960 has no jurisdiction to direct reinstatement of the services of the

respondent no.1. The observations of the learned Single Judge in that

regard in Hariram Tukaramji Ambulkar & Others (supra) are also on the

same lines. In that view of the matter the order passed by the Assistant

Registrar on 14.02.2010 to the extent it directs the Society to reinstate

the respondent no.1 on the post of Manager is a direction without

jurisdiction. To that extent the order passed is unsustainable.

9. In the light of aforesaid discussion we find that the

respondent no.1 was dismissed from service in a manner contrary to law.

This act of termination has been found to be illegal by the Assistant

Registrar in appeal which finding has been affirmed by the learned Single

Judge in Writ Petition No.2244 of 2010. That finding stands affirmed.

However the consequential relief of reinstatement cannot be granted to

the respondent no.1 as there is no jurisdiction to do so under the Act of

1960. To that extent the orders passed by the Assistant Registrar on

14.02.2010 as affirmed by the learned Single Judge are liable to be set

aside. It would be open for the respondent no.1 to seek damages on

LPA 594-10 9 Judgment

account of illegal termination of his services which he can claim by

approaching the Civil Court, if so advised.

10. Hence for aforesaid reasons the order passed by the Assistant

Registrar, Co-operative Societies, Umrer on 14.02.2010 to the extent the

order of dismissal dated 11.01.2001 has been set aside stands confirmed.

The direction to reinstate the services of the respondent no.1 on the post

of Manager is set aside. It is open for the respondent no.1 to seek

damages for his illegal termination from services. The same may be

claimed in accordance with law by approaching the Civil Court if so

advised. The period spent in prosecuting Writ Petition No.2244 of 2010

and the present letters patent appeal is liable to be excluded in case the

respondent no.1 approaches the Civil Court for redressal of his grievance.

11. The letters patent appeal is allowed in aforesaid terms. The

parties to bear their own costs.

             (G.A. SANAP, J.)                 (A.S. CHANDURKAR, J.)

APTE