Research › Search › Judgment

Bombay High Court · body

2010 DIGILAW 1600 (BOM)

Ashok s/o. Shriram Ingale v. State of Maharashtra

2010-10-27

R.K.DESHPANDE

body2010
JUDGMENT 1. Rule. Heard finally by the consent of learned counsel appearing for the parties. 2. These petitions are being disposed of by this common judgment. 3. The undisputed factual position available on record needs to be stated. Upon receipt of an application dated 2311-2007 requesting the Divisional Joint Registrar to hold an enquiry into the allegations of corruption and illegalities in the respondent No.3 in Writ Petition Nos.4969 of 2009 and 264 of 2010, i.e. The Amravati Zilla Parishad Shikshak Sahakari Bank (for short. hereinafter referred to as "the respondent No.3-Bank"), the Divisional Joint Registrar appointed one Shri. V. D. Kahalekar, the District Deputy Registrar, Co-operative Societies, to hold a fact-finding enquiry into the affairs of the respondent No.3-Bank. Shri. V. D. Kahalekar submitted his report dated 2511-2008. On the basis of this report, the Divisional Joint Registrar passed an order dated 19-12-2008 appointing one Shri. M. D. Date as an Enquiry Officer to conduct an enquiry under Section 83 of the Maharashtra Co-operative Societies Act, 1960 (for short, hereinafter referred to as "the said Act") into the affairs of the respondent No.3-Bank, on the points mentioned in the annexure appended to the said order. 4. The respondent No.3-Bank filed Revision No.118 of 2008 before the Divisional Joint Registrar under Section 154 of the said Act challenging the fact-finding enquiry report submitted by Shri. V. D. Kahalkar on 25-112008. The Divisional Joint Registrar, by his order dated 31-12-2008, rejected the said revision on the ground that the same is not maintainable, as he himself had appointed Shri. V. D. Kahalekar as an Enquiry Officer to conduct an enquiry into the affairs of the respondent No.3-Bank. This order was the subject-matter of challenge in Writ Petition No.2964 of 2009 filed by the respondent No.3Bank on 16-6-2009. It seems that simultaneously the respondent No.3-Bank also challenged the order dated 19-12-2008 passed by the Divisional Joint Registrar appointing Shri. M. D. Date to hold an enquiry under Section 83 of the said Act by filing Revision No.58 of 2009 before the State Government under Section 154 of the said Act. It seems that simultaneously the respondent No.3-Bank also challenged the order dated 19-12-2008 passed by the Divisional Joint Registrar appointing Shri. M. D. Date to hold an enquiry under Section 83 of the said Act by filing Revision No.58 of 2009 before the State Government under Section 154 of the said Act. By an order dated 7-8-2009, the State Government decided the said revision and quashed and set aside the order dated 19-12-2008 passed by the Divisional joint Registrar, by which an enquiry was directed to be conducted against the respondent No.3-Bank, on the ground that it was in the breach of the principles of natural justice and was illegal. 5. In view of the order dated 7-82009 passed by the State Government, the respondent No.3-Bank filed a pursis dated 229-2009 in Writ Petition No.2964 of 2009 seeking withdrawal of the said writ petition on the ground that Revision No.58 of 2009 has been decided by the State Government by setting, setting aside the order dated 19-122008 passed by the Divisional Joint Registrar. This Court passed an order dated 22-9-2009 permitting the petitioner to withdraw the said writ petition. Accordingly, the petition was dismissed as withdrawn. 6. Being aggrieved by an order dated 7-8-2009 passed in Revision No.58 of 2009 by the State Government, Writ Petition Nos.4969 of 2009 and 264 of 2010 have been filed on 7-10-2009 and 15-1-2010 respectively. Since both these petitions are filed challenging the order passed by the State Government, the respondent No.3-Bank filed Civil Application No.338 of 2010 in Writ Petition No.2964 of 2009 for recall of the order dated 22-9-2009, by which the petitioner in Writ Petition No.2964 of 2009 was permitted to withdraw the said writ petition. The ground for recall of the order, as stated in the application, is that the aforesaid two writ petitions have been filed challenging the order dated 7-10-2009 passed by the State Government and, therefore, it would be in the fitness of the things to hear this writ petition on merits along with the other two writ petitions. In view of the factual position prevailing, the order dated 22-9-2009 passed in Writ Petition No.2964 of 2009 is recalled. Writ Petition No.2964 of 2009 is restored. Learned AGP Shri. Mujumdar waives service of notice. Civil Application No.218 of 2010 is allowed for intervention. Heard the matter finally by consent of the learned counsel for the parties. 7. In view of the factual position prevailing, the order dated 22-9-2009 passed in Writ Petition No.2964 of 2009 is recalled. Writ Petition No.2964 of 2009 is restored. Learned AGP Shri. Mujumdar waives service of notice. Civil Application No.218 of 2010 is allowed for intervention. Heard the matter finally by consent of the learned counsel for the parties. 7. Revision No.118 of 2008, which was preferred by the respondent No.3-Bank under Section 154 of the said Act, was dismissed by an order dated 31-12-2008 passed by the Divisional Joint Registrar on the ground that he had himself passed an order appointing Shri. V. D. Kahalkar to enquire into the allegations and hence the fact-finding enquiry report submitted by said Shri. V. D. Kahalkar on 25-11-2008 cannot be challenged before him. Shri Gilda, the learned counsel appearing for the respondent No.3-Bank. submits that nothing prevents the Divisional Joint Registrar from entertaining and deciding the revision, challenging the report dated 2511-2008 submitted by Shri. V. D. Kahalkar, in spite of the fact that the Divisional Joint Registrar had himself appointed said Shri. V. D. Kahalkar to hold an enquiry under Section 83 of the said Act. He submits that the question of legality, correctness and propriety in respect of the findings .recorded in the fact-finding enquiry report dated 25-11-2008 can be gone into by the Divisional Joint Registrar in exercise of his revisional jurisdiction. under Section 154 of the said Act. At any rate, he submits that the respondent no.3-Bank has no objection if the Divisional Joint Registrar decides Revision No.118 of 2008 challenging the report of Shri. V. D. Kahalkar dated 2511-2008. The main ground of challenge to the report of enquiry by the respondent No.3-Bank was that no opportunity of hearing was given during the enquiry, to the members of the Managing Committee of the respondent No.3-Bank. 8. The order dated 19-12-2008 passed by the Divisional Joint Registrar appointing Shri. M. D. Date to hold an enquiry under Section 83 of the said Act, was the subject matter of challenge in Revision No.58 of 2009. The complaint in the revision before the State Government was that while submitting the enquiry report dated 25-11-2008 by Shri. V. D. Krthalkar, no opportunity of hearing was given to the members of the Managing Committee of the respondent No.3Bank. The complaint in the revision before the State Government was that while submitting the enquiry report dated 25-11-2008 by Shri. V. D. Krthalkar, no opportunity of hearing was given to the members of the Managing Committee of the respondent No.3Bank. The only ground on which the State Government has set aside the order dated 1912-2008 passed by the Divisional Joint Registrar is that no opportunity to furnish an explanation was given to the members of the Managing Committee of the respondent No.3Bank, and thus, it was in breach of the principles of natural justice. Though the finding is given that the order dated 19-122008 is illegal, the order does not disclose any reason for recording such a finding. 9. In the light of the factual position pointed out as above and the grounds of challenge raised, the complaint of the respondent No.3-Bank in respect of the report of enquiry dated 25-11-2008 and the order dated 19-12-2008 seem to be that the same are in breach of the principles of natural justice. The Divisional Joint Registrar had passed an order dated 19-12-2008 on the basis of the enquiry report dated 25-11-2008 submitted by Shri. V. D. Kahalkar. In view of the arguments advanced by Shri. Gilda, the learned counsel, in respect of the order dated 31-12-2008 passed by the Divisional Joint Registrar dismissing Revision No.118 of 2008 (see para 7 above), the matter can be decided by the Divisional Joint Registrar in exercise of his revisional jurisdiction under Section 154 of the said Act. There is no impediment in the way of the Divisional Joint Registrar to decide the said revision. 10. The State Government has, by its order dated 7-8- 2009, set aside the order dated 19-12-2008 passed by the Divisional Joint Registrar only on the ground that the principles of natural justice have not been followed in respect of the enquiry report dated 25-11- 2008 submitted by Shri. V. D. Kahalkar. Once it is held that the Divisional Joint Registrar is competent to go into the legality, correctness and propriety of the enquiry report dated 2511-2008, then the said issue can be decided by the Divisional Joint Registrar in Revision No.118 of 2008. There was no challenge to the order dated 19-12-2008 passed under Section 83 of the said Act by the Divisional Joint Registrar, in Revision No.118 of 2008. There was no challenge to the order dated 19-12-2008 passed under Section 83 of the said Act by the Divisional Joint Registrar, in Revision No.118 of 2008. The State Government has in Revision No.58 of 2009, set aside the order of the Divisional Joint Registrar dated 19-12-2008 on the ground that the same is illegal. However, there is no reason recorded for holding that the order dated 19-12-2008 is Illegal. In view of this, the order passed by the State Government cannot be sustained and the same will have to be quashed and set aside. It may not be out of place to state that if the State Government was of the opinion that the order dated 19-12-2008 was passed in violation of the principles of natural justice, the course left open to the State Government was to remit the matter back to the Divisional Joint Registrar for compliance. However, this has not been done. 11. In view of the aforesaid position, the following order is passed: ORDER : (a) The order dated 7-8-2009 passed in Revision No.58 of 2009 by the State Government is hereby quashed and set aside. (b) The order dated 31-12-2008 passed in Revision No.118 of 2008 by the Divisional Joint Registrar is also quashed and set aside. (c) The matter is remitted back to the Divisional Joint Registrar to decide Revision No.118 of 2008 afresh in accordance with law after affording all the parties an opportunity of being heard in the matter. (d) The parties shall appear before the Divisional Joint Registrar on 15-112010. The Divisional Joint Registrar shall decide the revision within a period of one month thereafter. (e) So far as the order dated 19-12-2008, which is based upon the enquiry report dated 25-11-2008, is concerned, the Divisional Joint Registrar shall, after the decision of Revision No.118 of 2008, pass appropriate order in accordance with law. It is, however, made clear that if the said revision is dismissed, then there will be no question of touching the order dated 19-12-2008 and it shall, operate. It is, however, made clear that if the said revision is dismissed, then there will be no question of touching the order dated 19-12-2008 and it shall, operate. (f) It is made clear that this Court has not gone into the merits of any issue and the Divisional Joint Registrar shall be at liberty to record his findings and decide the matter without being influenced by any observation made either by this Court or by the State Government against any of the parties, either on question of law or on facts. 12. Rule is made absolute in all the petitions in above terms. No order as to costs. Rule made absolute.