Rajendra Gangaram Patil And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 11387 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                                WRIT PETITION NO. 143 OF 2019




1. Rajendra Gangaram Patil
  Age : 57 years, Occu:Service,
  R/o.14, Ugandhar Colony, Gondur Road,
  Deopur, Dhule.

2. Sunil Shivaji Patil,
  Age : Major, Occu : Service,
  R/o.28, Savarkar Nagar, Sakri,
  Tq. Sakri, Dist. Dhule.

3. Atiram Ramchand Pawar,
  Age : Major, Occu : Service,
  R/o. Kokani Hill, Nandurbar,
  Tq. and Dist. Nandurbar.

4. Smt. Sangita Rajaram Avhad,
  Age : Major, Occu : Service,
  R/o. Shubham Apartment, In front of
  Sindhuratna English School,
  Sakri Road, Dhule, Dist. Dhule.

5. Kishor Atmaram Rayate,
  Age : Major, Occu : Service,
  R/o. 22, Sainagar, Navapur,
  Tq. Navapur, Dist. Nandurbar.

6. Anil Tukaram Torwane,
  Age : Major, Occu : Service,
  R/o. Raje Sambhaji Nagar, Near
  Dnyanpeeth School, Satana Road,
  Pimpalner, Tq. Sakri, Dist. Dhule.

7. Bahadursing Narayansing Padavi,



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 Age : Major, Occu : Service,
 R/o. At Post Bhangrapani,
 Tq. Akkalkuwa, Dist. Nandurbar.

8. Ravindra Rajdhar More,
  Age : Major, Occu : Service,
  R/o. Plot No. 15, Shriraj Apartment,
  In front of Police Club, Vaibhav
  Nagar, Dhule, Tq. and Dist. Dhule.

9. Bhaskar Nimba Amrutsagar,
  Age : Major, Occu : Service,
  R/o. Deochand Nagar, Sanghma Chowk,
  Near Ramnagar, Sakri Road,
  Dhule, Tq. and Dist. Dhule.

10. Sau. Pratibha Rajendra Sisode,
  Age : Major, Occu : Service,
  R/o Bhupesh Nagar, Behind Town
  Hall Creation Garden, Shirpur,
  Tq. Shirpur, Dist. Dhule.

11. Sau. Sindhubai Shantaram Ahirrao,
  Age : Major, Occu : Service,
  R/o. 8 Suyog Nagar, Vadi-Bhokar
  Road, Deopur, Dhule, Dist. Dhule.

12. Kailas Poulad Patil,
  Age : Major, Occu : Service,
  R/o Tirupati Balaji Nagar,
  Songir, Tq. and Dist. Dhule.

13. Hansraj Vitthal Patil,
  Age : Major, Occu : Service,
  R/o. 79, Suraj Kesari Nagar,
  Nandurbar, Tq. and Dist. Nandurbar.

14. Girish Hilal Bagul,
  Age : Major, Occu : Service,
  R/o. B.K.Desale Nagar,



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  Varul Road, Shindkheda,
  Tq. Shindkheda, Dist. Dhule.

15. Motilal Uttamrao Deore,
  Age : Major, Occu : Service,
  R/o. At Post Boris,
  Tq. and Dist. Dhule.                        ..PETITIONERS

         Versus

1. The State of Maharashtra
  Through its Principal Secretary,
  Department of Cooperation,
  Mantralaya, Mumbai.

2. The Hon'ble Minister,
  Cooperation Textile and Marketing,
  Mantralaya Mumbai.

3. The Divisional Joint Registrar,
  Cooperative Societies,
  Nashik Division Nashik.

4. Inquiry Officer (U/Sec. 88)
  So also Assistant Registrar
  Cooperative Societies,
  Shirpur, Tq. Shirpur, Dist. Dhule.

5. Dhule and Nandurbar
  District Primary Teachers
  Cooperative Patpedhi Ltd.,
  Office : Abhiyanta Nagar,
  Vadi-Bhokar Road, Deopur,
  Dhule, Dist. Dhule.                       .. RESPONDENTS




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                                       .....
Mr. Vijay B. Patil,Advocate for the petitioners
Mr. P.N. Kutti, A.G.P. for respondent Nos.1 to 4
Mr. Shrikant S. Patil, Advocate for respondent No.5
                                       .....

                                    CORAM :    MANGESH S. PATIL, J.

                                    DATE :     20.08.2021


ORAL JUDGMENT :-


      Heard. Rule.          The Rule is made returnable forthwith.          The learned

advocates for the respondents waive service. With the consent of both the

sides the matter is heard finally at the stage of admission.

2] The petitioners are the members of the erstwhile Managing Committee

of the respondent no.5 Credit Society during the period 2005 to 2010. After

election of a new Managing Committee in October 2011, out of sheer

vengeance and grudge a re-audit was undertaken in respect of the period

during which the petitioners were holding the office. On the basis of such re-

audit the respondent no.3 Divisional Joint Registrar passed the impugned

order under Section 88 of the Maharashtra Cooperative Societies Act 1960

(hereinafter referred to as the Act) and the Appeal preferred by them before

the Minister has also been dismissed. Hence this Writ Petition.

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3]    The learned advocate Mr.Patil for the petitioners would at the inception

submit that with an intention to obviate any such re-audit to be undertaken

just to take vengeance by a successor body, the Commissioner for Cooperation

and Registrar of Cooperative Societies of Maharashtra has issued a Circular

dated 8/4/1988 and has laid down certain guidelines to regulate the powers

under Section 81(6) of the Act of ordering re-audit. It is in utter dereliction of

these guidelines that in the present matter the Managing Committee in the

office has engineered a direction for re-audit which forms the basis of the

impugned order under Section 88 of the Act.

4] The learned advocate Mr.Patil would then submit that the impugned

order passed by the respondent no.3 clearly undermines the purport and

scope of that provision. It is expected that he would arrive at some objective

satisfaction. While issuing the directions of conducting an enquiry there has

to be a clear case of misfeasance or misapplication. Specific irregularities

have to be noted to demonstrate application of mind. However, the

impugned order does not comply with these basic requirements. Mere use of

word 'satisfaction' is not sufficient. There has to be some substance which is

conspicuously absent in the impugned order to justify such satisfaction. In

support of his submission he would place reliance on the decision of this Court

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in the case of Director of Handlooms, Powerlooms and Co-operative

Textiles,Nagpur V/s G.S.Rambhad, Chairman and others; 2000(2)Mh.L.J.566.

5] The learned A.G.P. and the learned advocate for the respondent no.5

submit that all the precautions leading to the passing of the impugned order

have been taken. Rampant irregularities were noticed in the re-audit. Each of

them has been noticed and pointed out by the respondent no.3 in his

impugned order which clearly demonstrates that he did apply his mind.

Having reached an objective satisfaction there was no alternative for him but

to direct the enquiry. They would submit that the petitioners are shying away

from the enquiry. They would have an opportunity to meet the charges.

Considering the gravity of the charges the impugned order cannot be struck

down. No prejudice is likely to be caused to them. It is not that there is no

basis for arriving at the objective conclusion. The audit report prima facie

supports such a conclusion. There is no illegality in the order. The

respondent no.2 learned Minister has taken into consideration all these

circumstances and has rightly dismissed the petitioner's Appeal.

6] I have carefully considered the rival submissions and the provisions of

the Act, as also the impugned orders and the decision of this Court in the case

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of Director of Handlooms (supra).

7] So far as the purport and scope of the provisions of Section 88 of the

Act, those have been succinctly laid down in the case of Director of

Handlooms (supra) in paragraph nos.8 to 10.

8] However, the fact of the matter is that the matter in hand would be

governed by the self-same observations. As can be noticed, in that matter, the

Registrar except by using the word 'satisfaction' had not demonstrated in the

order about having applied his mind while exercising the powers under

Section 88 of the Act. As against this, in the matter in hand, the respondent

no.2 has passed an elaborate and speaking order.

9] Pertinently, the impugned order reads about the respondent no.2 having

gone through the provisions, the audit report and other documents and has

taken care to reproduce and point out each and every instance of misfeasance

or misapplication which are about 14 instances. Though one need not go into

each of these, the serious objections are touching to the aspect of having

received deposits from non members to the tune of 17 crores of rupees and

not depositing of more than Rs.17 crores and not securing those with atleast

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20% in the secured instruments. The employees were paid salaries of which

atleast 4 of them were absconding and 6 were suspended. Huge loans were

outstanding against the employees. There was no provision made for non

performing assets which has resulted in the accounts not reflecting the correct

figure of losses. There is a difference in figures in respect of actual deposits

and the deposits mentioned in the balance sheet. 90% of vouchers against

which reimbursements were claimed did not disclose to whom the money was

paid.

10] It is after going through and referring to these details that the

respondent no.3 has passed the impugned order regarding satisfaction that all

the aforementioned instances have resulted in causing loss to the Society. If

this be so, in my considered view the impugned order cannot be equated with

the order that was before this Court in the case of Director,Handlooms

(supra).

11] Apart from the above state of affairs, when the aforementioned

circumstances clearly indicate that the respondent no.3 has reached some

objective satisfaction, it would not be appropriate for this Court to sit in

appeal to ascertain if he really was entitled to reach such a conclusion. There

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has to be some leeway for any authority conferred with such a power. The

satisfaction reached by him being based on some material, this Court need not

go into sufficiency or otherwise of that material while exercising writ

jurisdiction.

12] There is no merit in the Writ Petition. It is dismissed. However, the

observations made hereinabove are only for the purpose of deciding the Writ

Petition and the Enquiry Officer need not feel influenced by those.

13]     The Rule is discharged.



                                            [MANGESH S. PATIL, J.]



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