Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 548 (MP)

Ramesh Kumar Gautam v. State of M. P.

2016-07-12

SUJOY PAUL

body2016
ORDER 1. These batch of petitions were analogously heard on the joint request of the parties and are decided by this common order. 2. Facts are taken from Writ Petition No.649/2016 and Writ Petition No.21281/2015. The petitioners have prayed for quashing of resolution dated 8.5.2015, communication dated 29.6.2015 and letter dated 30.11.2015. It is contended by learned counsel for the petitioners that Assistant Registrar, Cooperative Societies approved the resolution passed by the General Manager as legal on the strength of which petitioner was appointed initially on the post of Sahayak Samiti Sevak at the fixed rate of Rs.500/-. The Board of Directors vide order dated 8.5.1998 approved the Collector rate in favour of the petitioner. Subsequently, by resolution dated 5.9.2008, Staff Sub-Committee gave regular pay-scale to the petitioner. The petitioner was further promoted by order dated 11.5.2012 Annexure P-11. Thus, this petitioner in Writ Petition No.649/2016 is employed since 15.9.1995. He was never subjected to any disciplinary/department action. It is urged that on dissolution of Board of Directors, charge was taken over by the Collector as Administrator of Zila Sahkari Kendriya Bank Maryadit, Sidhi. Certain resolutions were passed by Staff Sub Committee and Board of Directors whereby resolution of promotion given in favour of the petitioner was declared as null and void. It is submitted that resolution by way of circular is permissible only when there is an emergent situation and not otherwise. There was no such situation prevailing and hence such a resolution could not have been passed. It is further urged that the annulment of proceedings of Societies by successor Board of Directors is without there being any previous approval in writing by Registrar, Cooperative Society. By filing written submissions in Writ Petition No.649/2016, it is submitted that if impugned orders are not quashed, interim order may be continued for the period petitioner's representation is considered by respondents. It is further stated that as per section 3 of the Madhya Pradesh Cooperative Societies Act, 1960 (for short 'Act'), Additional Registrar, Joint Registrar/Assistant Registrar can be appointed to assist a Registrar. Thus, action taken by the Sub-ordinate Registrar cannot be termed as illegal. It is argued that petitioner cannot be made to suffer for the misconduct on the part of the Board of Directors /Staff Sub Committee in appointing them. Thus, action taken by the Sub-ordinate Registrar cannot be termed as illegal. It is argued that petitioner cannot be made to suffer for the misconduct on the part of the Board of Directors /Staff Sub Committee in appointing them. By taking assistance from [1994 RN 400= 1993 MPLJ 786 ] (Dinesh Kumar Sharma v. M.P. Dugdha Mahasangh Sahkari Maryadit and another), it is prayed that despite availability of alternative remedy, this matter be entertained. 3. Written submissions are filed in Writ Petition No.649/2016, Writ Petition No.21281/2015 and Writ Petition No.1129/2016. It is common ground that show cause notice is nothing but an eyewash because decision has already been taken to terminate the services of the petitioner. Reliance is placed on [ (2006)12 SCC 33 ] (Siemens Ltd. v. State of Maharashtra and others) and [ 2004(3) SCC 440 ] (Special Director and another v. Mohd. Ghulam Ghouse and another). It is urged that the notice suffers from jurisdictional error and hence petition can be entertained. In written submissions, it is urged that petitioners filed their reply before the authorities and they be directed to consider their cases objectively by considering the entire record. Apart from this, it is submitted that resolution filed by the bank along with the reply is not in accordance with section 49(b) of the Act. Section 49 confers power for annulment of proceedings of society to the successor Board of Directors. The Administrator is only an arrangement for intermediate period when the elected Board of Directors is not functional. He could not have executed the earlier resolution of Board/Staff Sub-Committee. Reliance is placed on certain judgments of Supreme Court which deal with fair play in issuing the administrative order and relating to issuance of effective notice. Similar arguments are advanced by filing written submissions in Writ Petition No.1129/2016. 4. Learned counsel for the employer on the other hand contended that petitioners have challenged the show cause notice. At this stage, the petitioners may file reply and put forth their defence on factual and legal aspects. In addition, it is the stand of the respondents that petitioners have statutory alternative remedy under the Act. Heavy reliance is placed on the orders passed by this Court in exactly similar petitions Writ Petition No.336/2016 and Writ Petition No.21480/2015. At this stage, the petitioners may file reply and put forth their defence on factual and legal aspects. In addition, it is the stand of the respondents that petitioners have statutory alternative remedy under the Act. Heavy reliance is placed on the orders passed by this Court in exactly similar petitions Writ Petition No.336/2016 and Writ Petition No.21480/2015. On the strength of these orders, it is urged that since petitioners are similarly situated and similar notice is under challenge in these batch of petitions, petitioners be relegated to avail alternative remedy. 5. I have heard the learned counsel for the parties at length. 6. It is seen that petitioners have raised various factual aspects to contend that their appointment, promotion etc. were in accordance with law. They have alleged that the decision making process in issuing the notice is not proper. It is also suggested that since procedure is not properly followed, notice could not be treated to be issued by competent authority. 7. It is seen that in Writ Petition No.336/2016 the following order is passed by Coordinate Bench : “10.5.2016 Shri A.P. Shah, learned counsel for the petitioner. Shri S.K. Singh, learned counsel for the respondent No.6. The petitioner in this petition has challenged the notices proposing to terminate the service of the petitioner on account of the fact it is said to be illegally made. The dispute in question is a service dispute between an employee of the cooperative society and cooperative society registered under M.P. Cooperative Societies Act, 1960 therefore, Shri S.K. Singh, learned counsel for the respondent has raised a preliminary objection to say that the service dispute is cognizable by a cooperative Court under section 55 of the M.P. Cooperative Societies Act and therefore, the writ petition directly before this Court when a statutory alternative remedy to file appeal, second appeal and revision under the M.P. Cooperative Societies Act is available is impermissible. I find much force in the objection raised by Shri Singh. When a statutory remedy of appeal, second appeal and revision is available to the petitioner before the Cooperative Court or the Cooperative Tribunal, this writ petition directly before this Court by-passing all the statutory remedy is not permissible. Accordingly, this petition is dismissed, granting liberty to the petitioner to take recourse to the aforesaid statutory remedy. When a statutory remedy of appeal, second appeal and revision is available to the petitioner before the Cooperative Court or the Cooperative Tribunal, this writ petition directly before this Court by-passing all the statutory remedy is not permissible. Accordingly, this petition is dismissed, granting liberty to the petitioner to take recourse to the aforesaid statutory remedy. Sd/- (RAJENDRA MENON) JUDGE” In Writ Petition No.336/2016 the following order is passed by Coordinate Bench : “15.12.2015 Shri V. K. Shukla, learned counsel for the petitioners. Against the impugned order passed, petitioners have a remedy of approaching the M.P. State Cooperative Tribunal and, therefore, the petition directly before this Court without taking recourse to the remedy available of approaching the said Tribunal is not maintainable. Accordingly, granting liberty to the petitioners to approach the M.P. State Cooperative Tribunal, this writ petition stands disposed of.” 8. It is not disputed by learned counsel for the petitioners that present petitioners are similarly situated qua the petitioners of Writ Petition No.336/2016 and Writ Petition No.21480/2015. In the said cases, interference was not made and liberty was given to the petitioner to file reply before the authorities or take recourse of statutory remedy. 9. In these batch of petitions also, the grounds are almost same. The petitioners themselves relied upon the judgment of Supreme Court in Mohd. Ghulam Ghouse and another (supra). In the said case, it was held as under: “Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter.” (Emphasis supplied) A plain reading of the principle laid down in the said case makes it clear that the writ petitions should not be entertained as a matter of routine when it is open to the parties to show cause and take objections regarding jurisdictional issue and other factual aspects. The same authority can very well deal with the said aspect. In the opinion of this Court, it is open to the petitioners to either file effective reply or approach the appropriate forum under the Act against the impugned orders/notice. I find no reason to deviate from the view taken by the Coordinate Bench in the aforesaid WPs. It is true that in view of Full Bench judgment of this Court in Dinesh Kumar Sharma (supra), a writ petition can be entertained despite availability of alternative remedy. However, a writ petition can be entertained as per the discretion of the Court and there is no such compulsion to entertain any such petition. Since similar petitions are not entertained, I do not propose to give any different treatment to these petitioners. At the cost of repetition, in my view, as per the judgment of Mohd. Ghulam Ghouse (supra), petitioners can even raise jurisdictional issue by filing reply to the show cause notice or by approaching appropriate forum under the relevant Act. 10. So far prayer of the petitioners to continue the interim relief is concerned, it is apt to quote para 22 of the judgment of Supreme Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania [ (2010)9 SCC 437 ], which reads as under : “22. It is a settled legal proposition that the forum of the writ Court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant. It is a settled legal proposition that the forum of the writ Court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant. If the Court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief. (vide: State of Orissa v. Madan Gopal Rungta [ AIR 1952 SC 12 ]; Amarsarjit Singh v. State of Punjab [ AIR 1962 SC 1305 ]; State of Orissa v. Ram Chandra Dev [ AIR 1964 SC 685 ]; State of Bihar v. Rambalak Singh "Balak" and others [ AIR 1966 SC 1441 ]; and Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others [ AIR 1975 SC 2238 )].” (Emphasis supplied) In the light of the Supreme Court judgment, I am not inclined to extend the interim relief when matter is relegated before the authorities/appropriate form. It is noteworthy that in aforesaid Writ Petition No.336/2016 and Writ Petition No.21480/2015 also, interim relief was not granted/extended. I am only inclined to observe that if reply is filed before the authorities by the petitioners or competent authority forum is approached by them, it will be lawful for the said authorities to deal with the petitioners' objection/defence dispassionately in accordance with law. With the aforesaid observations, petitions are disposed of.