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2008 DIGILAW 1704 (BOM)

Gajanan Mahadeo Kulkarni v. State of Maharashtra

2008-12-04

NISHITA MHATRE

body2008
Judgment :- Oral Judgment: 1. The petitioners have impugned the order of the Divisional Joint Registrar, Co-operative Societies (Appeal), Mumbai, by which he has dismissed the revision application filed by the petitioners and confirmed the orders passed by the Assistant Registrar on 20.2.1993 and 10.10.1994. 2. The petitioners were members of the respondent No.5 Society and were in fact members of the Managing Committee of the Society during the period from 31.1.1982 to 30.9.1990. A General Body meeting of the Society was held on 30.9.1990 when it was resolved that a Committee should be appointed to conduct an enquiry into the misuse of the Society’s funds by the Managing Committee. The Committee called upon the petitioners to provide information to it in respect of the misuse of funds. The petitioners requested the Committee to provide them details of the information which they were expected to furnish. A resolution was passed at the Annual General Body meeting held on 26.1.1992 declaring that the petitioners will be responsible for the corruption during the period from 31.1.1982 to 30.9.1990 with respect to the Society. The General Body also resolved that the flats allotted to the petitioners should not be sold by then till a decision was taken by either the Court or the Government. 3. An enquiry was instituted under Section 83 of the Maharashtra Co-operative Societies Act, 1960. The enquiry was initially conducted by one Shri P.V. Deshpande but was later abandoned. Thereafter another enquiry officer, Shri Khadakkar, was appointed and he was directed to complete the enquiry within two months. The petitioners appeared before the Enquiry officer and submitted whatever information was required by him. The enquiry was completed and the report was submitted by the Enquiry officer, Khadakkar to the Society through the Deputy Registrar, Co-operative Societies, "T" Ward. The report was however not furnished to the petitioners, despite the petitioners’ request for the same. 4. The petitioners were then informed that a fresh enquiry was instituted under Section 83 of the Act in respect of the same subject matter for which the earlier enquiry was conducted by Khadakkar. The petitioners questioned the appointment of another enquiry officer when they had already faced the enquiry conducted by Khadakkar. However, the Deputy Registrar insisted on a fresh enquiry by his order dated 10.1.1995. A revision application was filed by the petitioners before the Joint Registrar, Co-operative Societies. The petitioners questioned the appointment of another enquiry officer when they had already faced the enquiry conducted by Khadakkar. However, the Deputy Registrar insisted on a fresh enquiry by his order dated 10.1.1995. A revision application was filed by the petitioners before the Joint Registrar, Co-operative Societies. The Deputy Registrar was directed to furnish the enquiry report of Khadakkar to the petitioners. The revision application was dismissed by the Joint Registrar and the order of the Deputy Registrar appointing a new enquiry officer to conduct an enquiry into the same charges was confirmed. 5. The report of the enquiry conducted against the petitioners by Mr. Khadakkar has been annexed to the petition. It indicates that the enquiry was completed and in conclusion it was held as follows:- "Conclusion. The members of the Managing Committee who are for the period 81-82 to 30.6.90 will be held responsible for every losses of the society in respect of the building construction of the society. As per the opinion authorized Valuer should appoint to assess the construction cost of the buildings of the Society. And the difference between the assessed value and actually paid to the contractor in respect of the building construction to be recovered from the members of the Managing Committee who are for the period i.e. 81-82 to 30.6.90 if it was excess paid." 6. A perusal of Section 83 of the Act indicates that the Registrar may, on his own or on an application made by the members of the society, hold an enquiry into the constitution, working and financial condition of a society. The sub-section (5) of Section 83 provides that the Registrar may withdraw any enquiry from the officer to whom it is entrusted and hold the enquiry himself or entrust it to any other person as he deems fit. The question therefore is, whether once an enquiry is completed can it be entrusted to any other enquiry officer only in order to ensure that the delinquents are found guilty by the enquiry officer. Section 83(5), in my opinion, is unambiguous. The Registrar may withdraw any enquiry from the officer conducting it and entrust it to any other person or hold it himself. This obviously would indicate that the enquiry must be in progress. If the enquiry is completed, then the question of withdrawing any enquiry from an officer would not arise. Section 83(5), in my opinion, is unambiguous. The Registrar may withdraw any enquiry from the officer conducting it and entrust it to any other person or hold it himself. This obviously would indicate that the enquiry must be in progress. If the enquiry is completed, then the question of withdrawing any enquiry from an officer would not arise. The word "withdrawal" would mean that the enquiry was being conducted by an officer and the Registrar either on his own or otherwise, stops that enquiry and either entrusts it to somebody else or conduct it himself. 7. In the present case, admittedly, the enquiry was completed, therefore, the question of recalling that enquiry and entrusting it to somebody else does not arise. The revisional authority ought to have considered the objections and contentions raised in the revision application on the merits of the first enquiry. The order of the revisional authority indicates that the revision has been dismissed only on the ground that the Deputy Registrar had the power to withdraw the enquiry if it was not being conducted properly. 8. In my opinion, the order of the Divisional Joint Registrar must be set aside and the matter will have to be remanded. The revision application must be considered on merits. The revisional authority must decide as to whether the contentions raised by the petitioners in their revision application in respect of the enquiry conducted by Shri Khadakkar are correct. 9. The petition is accordingly allowed. Rule made absolute. 10. Revision Application No.42 of 1995 is remanded to the Divisional Joint Registrar to hear and decide the revision on merits, as to whether the report of the enquiry officer Shri Khadakkar can be accepted.