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2016 DIGILAW 1330 (BOM)

Kailash Bhaskarrao Deshmukh v. Aurangabad Zilla Parishad Karmachari Sahakari Patsanstha Ltd.

2016-07-29

RAVINDRA V.GHUGE

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JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties. 2. The petitioner is aggrieved by the order dated 27/10/2015 passed by the Respondent temporarily dismissing the petitioner pending disciplinary proceedings. He is also aggrieved by the order dated 19/05/2016 by which his appeal has been dismissed. 3. I have considered the extensive submissions of the learned Advocates. 4. A short issue has been raised for the consideration of this Court as to whether a delinquent employee can be 'temporarily dismissed' from service pending disciplinary proceedings for the period during which the enquiry is to be conducted. 5. I am astonished to note that, the respondent, by order dated 27/10/2015, has initiated a departmental enquiry against the petitioner by appointing an Auditor (Class-II), Co-operative Society (Consumer), Aurangabad as an Enquiry Officer and in the same order of appointing of an Enquiry Officer, the petitioner has been temporarily dismissed from service pending disciplinary proceedings. It is further observed that during this period of temporary dismissal, the petitioner will not be entitled for any wages or allowances or any remuneration. 6. What is further astonishing is that the Divisional Joint Registrar, Cooperative Societies, Aurangabad has concluded that as an enquiry has been initiated as per Section 83, the order of temporary dismissal is sustained. 7. Section 83 of the Maharashtra Cooperative Societies Act, 1960 reads as under : “83. Inquiry by Registrar. (1) The Registrar may of his own motion, and shall on the application of one-third of the members of a society, himself or by a person duly authorised by him in writing in this behalf, hold an inquiry into the constitution, working and financial conditions of a society. (2) Before holding any such inquiry on an application, the registrar may having regard to the nature of allegations and the inquiry involved, require the applicant to deposit with him such sum of money as he may determine, towards the cost of the inquiry. If the allegations made in the application are substantially proved at the inquiry, the deposit shall be refunded to the applicant, and the Registrar may under section 85, after following, the procedure laid down in that section, direct from whom and to what extent the cost of the enquiry should be recovered. If the allegations made in the application are substantially proved at the inquiry, the deposit shall be refunded to the applicant, and the Registrar may under section 85, after following, the procedure laid down in that section, direct from whom and to what extent the cost of the enquiry should be recovered. If it is proved that the allegations were false, vexatious or malicious, the Registrar may likewise direct that such cost shall be recovered from the applicant. Where the result of the inquiry shows that the allegations were not false, vexatious or malicious, but could not be proved, such cost may be borne by the State Government. (3) (a) All officers, members and past members of the society in respect of which an inquiry is held, and any other person who, in the opinion of the officer holding the enquiry is in possession of information, books and papers relating to the society, shall furnish such information as in their possession, and produce all books and papers relating to the society which are in their custody or power, and otherwise give to the officer holding an inquiry all assistance in connection with the inquiry which they can reasonably give. (b) If any such person refuses to produce to the Registrar or any person authorised by him under sub-section (1), any book or papers which it is his duty under clause (a) to produce or to answer any question which put to him by the Registrar or the person authorised by the Registrar in pursuance of sub-clause (a) the Registrar or the person authorised by the Registrar may certify the refusal and the Registrar after hearing any statement which may be offered in defence punish the defaulter with a penalty not exceeding five hundred rupees. Any sum imposed as penalty under this section shall on the application by the Registrar or the person authorised by him to a Magistrate having jurisdiction be recoverable by the Magistrate as if it were a fine imposed by himself. [(c) The Registrar or the officer authorised by him shall complete the inquiry and submit his report as far as possible within a period of six months and in any case not later than nine months.] (4) The result of any inquiry under this section shall be communicated to the society whose affairs have been investigated. [(c) The Registrar or the officer authorised by him shall complete the inquiry and submit his report as far as possible within a period of six months and in any case not later than nine months.] (4) The result of any inquiry under this section shall be communicated to the society whose affairs have been investigated. (5) It shall be competent for the Registrar to withdraw any inquiry from the officer to whom it is entrusted and to hold the inquiry himself or entrust it to any other person as he deems fit.” 8. Byelaw No.F1.9 reads as under :- xxxx xxxx 9. Learned Advocate for the respondent is unable to point out any rule or byelaw which empowers the respondent specifically to 'temporarily dismiss an employee pending disciplinary proceedings'. Byelaw No.F1.9 (2), cited by the respondent, is not in relation to a situation of pending disciplinary proceedings. It only defines the scope of the powers of the Managing Committee to issue an order of dismissal which has to be construed to mean that the said Committee can issue a dismissal order. This power, necessarily means that the order of dismissal can be passed only by way of punishment and only for a proved misconduct of a grave and serious nature. 10. Neither of the learned Advocates has been able to cite any judicial pronouncement, interpreting Section 83 and/or Byelaw No.F1.9 (2) so as to empower the employer to 'temporarily dismiss' an employee pending disciplinary proceedings. 11. In the light of the above, this petition is allowed. The impugned orders dated 27/10/2015 and 19/05/2016 are quashed and set aside. Considering the fact that the respondent has not placed the petitioner under suspension pending disciplinary proceedings, the respondent is hereby directed to reinstate the petitioner in service and pay full back wages from the date of the 'temporary dismissal' till his reinstatement within a period of 4 (four) weeks from today. 12. Needless to state, the reinstatement of the petitioner and payment of the back wages shall occur forthwith and necessarily before the conclusion of the disciplinary proceedings. 13. Rule is made absolute in the above terms. 14. No costs.