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2020 DIGILAW 336 (MP)

SANTOSH SHARMA v. STATE OF M. P.

2020-02-29

VISHAL MISHRA

body2020
ORDER/JUDGMENT – Shri Raghvendra Dixit, counsel for the petitioners. Shri Purushottam Pandey, Govt. Advocate for the respondents/State. Shri Anil Sharma, counsel for respondent No. 4. With the consent of parties, the matter is finally heard. 2. Present petition has been filed challenging the order dated 24-1-2019 passed by respondent No. 4 whereby, the petitioners have been asked to deposit difference of the price of seeds within a period of three days, failing which, a direction for registration of FIR has been issued. It is submitted that the order impugned has been passed on the basis of the directions issued by Dy. Registrar on 8-9-2018 whereby, directing the Society Manager as well as In charge Manager of the Primary Agriculture Credit Co-operative Society Maryadit Khareh, Tehsil Muhansa, district Shivpuri for recovery of the aforesaid amount. On the basis of the letter annexure P/3 dated 8-9-2018, the impugned order has been issued by the Chief Executive Officer to the Branch Manager, Branch Shivpuri but in the aforesaid order, endorsement has been made that the aforesaid amount be deposited by the petitioners within a period of three working days, failing which, appropriate action will be taken against them. The petitioners being aggrieved by the aforesaid endorsement in the impugned order has filed this petition. 3. It is submitted that prior to making said endorsement, no show cause notice was issued to the petitioners to ascertain the fact that whether the petitioners are actually responsible for the loss being caused as the seeds were purchased from the agriculturists by the State Government through co-operative Societies and for that an order was issued by the District Collector on 24-4-2018. In the notice dated 8-9-2018, specific allegations were levied against the Manager of Seva Sahkari Samiti holding him responsible for the loss. It is submitted that on 12-3-2019, interim relief was granted by this Court and execution of order dated 24-1-2019 was stayed. It is submitted that on 19-7-2019, FIR was got registered against the petitioners for the offence punishable under section 409 of Indian Penal Code at PS Rannod District Shivpuri at Crime No. 0127 of 2019 which has been put to challenge by the petitioners by filing Misc. Cr. Case No. 3147 of 2019. It is submitted that on 19-7-2019, FIR was got registered against the petitioners for the offence punishable under section 409 of Indian Penal Code at PS Rannod District Shivpuri at Crime No. 0127 of 2019 which has been put to challenge by the petitioners by filing Misc. Cr. Case No. 3147 of 2019. It is submitted that subsequent development has taken place that the petitioners services have been put to end by subsequent order dated 13-6-2019 passed by respondents which was communicated to the petitioners along with the letter dated 10-10-2019. Termination order is dated 13-6-2019 but the same was communicated to the petitioners on 10-10-2019, hence, by way of amendment, the petitioners has put to challenge the aforesaid order and made certain amendments in the writ petition. The amendment application was allowed by this Court vide order dated 21-10-2019. It is submitted that the petitioners themselves have filed an application/suit on 7-4-2019 for recovery of the loss before the competent authority which is clearly reflected from document annexure R/4-2. Counsel for the petitioners further drew attention of this Court to the rules which are governing the services of the petitioners, copy of which is filed along with the petition as Annexure P/6. Part 6 of the aforesaid rules deals with the method and manner in which, departmental inquiry is to be conducted and the manner in which, the penalties are to be imposed. Clause 27 deals with the power of competent authority to impose penalty/punishment. In the case of Asstt. Manager i.e. like petitioners, competent authority is the Manager whereas, the impugned order has been passed by Chief Executive Officer, District Co-operative Central Bank Maryadit, Shivpuri. It is further pleaded that prior to terminating services of the petitioners, neither any show cause notice was issued nor any departmental inquiry was conducted as contemplated under the rules. It is submitted that the impugned orders have been passed in gross violation of principles of natural justice. He has prayed for quashment of the impugned order with further quashing of the termination order and for re-engagement of the petitioners. 4. Per contra, counsel for the State as well as counsel for the respondent No. 4 have opposed the prayer denying contentions raised by the petitioners alleging that the impugned order has rightly been passed and same does not call for any interference in the present petition. 4. Per contra, counsel for the State as well as counsel for the respondent No. 4 have opposed the prayer denying contentions raised by the petitioners alleging that the impugned order has rightly been passed and same does not call for any interference in the present petition. It is submitted that several show notices were issued to the petitioners but they failed to respond to the aforesaid notices. He has drawn attention of this Court to the return filed by respondent No. 4. It is argued that the petitioners are having alternative and efficacious remedy of raising the dispute before Arbitrator. It is submitted that the agreement was signed by the parties themselves and as per para 16 of the agreement, remedy of arbitration has been provided. Petitioners are also prepared for arbitration proceedings but these facts have been concealed by the petitioners in this petition. It is further argued that no civil Court or revenue Court is having jurisdiction with respect to the dispute and the writ petition filed before this Court is not maintainable. It is further submitted that the similar controversy has also been decided by this Court in W. P. No. 9011 of 2019 and the petition was disposed of with liberty to avail the alternative remedy available to them under M. P. Co-operative Societies Act. He has prayed for dismissal of the writ petition. 5. Counsel for the State though on earlier occasion adopted the return filed by respondent No. 4 but subsequently, filed additional return in the matter pointing out the fact that Dy. Registrar has already issued notices to the Dy. Manager of Co-operative Society, who was authorized to purchase the seeds vide order of Collector dated 24-4-2018. It is submitted that in pursuance to the order dated 24-1-2019, entire recovery is not being made from the petitioners but the petitioners being society Manager at that time the letter dated 8-9-2018 was served upon them for making recovery of shortage amount. The response was submitted by the petitioners and considering the same, letters were issued on 30-10-2018, 22-2-2019 and 26-4-2019 to the petitioners. The petitioners were found responsible for the shortage and were directed to deposit remaining amount of Rs. 34,10,575/- with the respondent herein. It was further pointed out that if the aforesaid amount is not deposited within three working days then action will be taken against the petitioners. The petitioners were found responsible for the shortage and were directed to deposit remaining amount of Rs. 34,10,575/- with the respondent herein. It was further pointed out that if the aforesaid amount is not deposited within three working days then action will be taken against the petitioners. In pursuance to the same, FIR has been registered against the petitioners. It is further pointed out that the several letters have been issued to the petitioners for depositing the amount within three days, failing which necessary action will be taken against them but the petitioners have failed to deposit the amount, therefore, FIR was got registered against them and after lodging of the same, services of the petitioners were put to an end. It is submitted that the petitioners themselves have chosen not to file response to the show cause notices issued to them from time to time. Thus, under said circumstances, the order passed by the authorities was justified and reasoned. The same does not call for any interference in the present writ petition. 6. By way of rejoinder, counsel for the petitioners has denied the averments of return and has submitted that the writ petition is maintainable against the impugned order. He has relied upon the judgment rendered by Full Bench of this Court in the case of B. B. Verma vs. State of M. P. and others, reported in 2007(4) M.P.L.J. 610 and has argued that the rules which are being framed are having statutory force, therefore, the writ petition is maintainable and the order of termination is being passed without following rules. He has further relied upon the order Hon. Apex Court in the case of M. P. Rajya Sahkari Bank vs. State of M. P., reported in (2007) 12 SCC 529 . 7. Counsel for the petitioners have further relied upon section 86 of the Co-operative Societies Act, 1981 which deals with services of notice. It is submitted that no procedure has been followed as contemplated under section 86 of the Act of 1981 while issuing notices to the petitioners. 8. Heard learned counsel for the parties and perused the record. 9. From perusal of the record, it is seen that the petitioners are Sahayak Samiti Prabandhak and posted in Sewa Sahkari Samiti, Village Khareh and Rannod, Tehsil Badarwas, district Shivpuri. 8. Heard learned counsel for the parties and perused the record. 9. From perusal of the record, it is seen that the petitioners are Sahayak Samiti Prabandhak and posted in Sewa Sahkari Samiti, Village Khareh and Rannod, Tehsil Badarwas, district Shivpuri. In pursuance of the impugned order issued by the State Government with respect to the purchase of seeds from agriculturists, the order was issued by the Collector on 24-4-2018. In the aforesaid order, it was provided that Managers of Sewa Sahkari Samitis are authorized to purchase the seeds. Some irregularities were committed during the purchase of seeds and accordingly, the notices were issued on 8-9-2018 by the respondent No. 3 to the Managers of the concerning Samitis. The allegations made against the Managers were that they were appointed to purchase seeds and have caused great loss in purchasing the seeds. However, in the impugned order dated 24-1-2019, letter issued by the Chief Executive Officer District Co-operative Central Bank Maryadit, Shivpuri addressing to Branch Managers to the effect that he made necessary arrangements for deposition of the amount of loss caused to the State Government with respect to the purchase of seeds being made by the concerning society and if the aforesaid amount is not deposited within three days, then coercive action to the extent of registration of FIR was directed. In pursuance to the same an endorsement was made on the letter dated 24-1-2019 to the effect that the petitioners were directed to deposit the amount. That endorsement was made on 28-1-2019. It was argued by the petitioners that the Dy. Registrar Co-operatives is the competent authority to make recovery in cases of loss being caused to the government exchequer as provided under section 85 of the M. P. Co-operative Societies Act, 1960 (hereinafter would be referred as to the “Act of 1960”). It is further directed that recovery can only be made in terms of procedure prescribed under sections 83, 84 84-A and 85 of the Act of 1960. It is argued that the order impugned has been issued by the incompetent authority without even following the procedure as prescribed under the Act. It was further argued that an amount of Rs. It is further directed that recovery can only be made in terms of procedure prescribed under sections 83, 84 84-A and 85 of the Act of 1960. It is argued that the order impugned has been issued by the incompetent authority without even following the procedure as prescribed under the Act. It was further argued that an amount of Rs. 34,10,575/- is directed to be deposited by the petitioners in pursuance to the loss being caused to the government in purchase of seeds but the fact remains that without making any calculations towards the loss and without providing opportunity of hearing to the petitioners and without there being any assessment with respect to the fact as to how much part of the loss, the petitioners are liable, the impugned order was passed. It was further pointed out that a direction for registration of FIR was also issued if the amount is not deposited within three days. 10. Relevant provisions of the Act of 1960 are required to be seen. Sections 83, 84 84-A and 85 of the Act of 1960 read as under : “83. Recovery of costs. – Any sum awarded by way of costs under section 62, may be recovered, on an application by the Registrar to a Magistrate having jurisdiction in the place where person from whom the money is claimable resides, or carries on business, by sale of any property within the limits of thee jurisdiction of such Magistrate, belonging to such, person, and such Magistrate shall proceed to recover the same, in the same manner as if it were a fine imposed by himself. 84. Enforcement of charge. 84. Enforcement of charge. – Notwithstanding anything contained in Chapter VII or any other law for the time being in force, but without prejudice to any other mode of a recovery provided in this Act, the Registrar or any 71 person empowered by the Registrar in this behalf, may on an application of the society and subject to such rules as State Government may make in this behalf, make an order directing the payment of any debt or outstanding demand due to the society by any member or past or deceased member by attachment and sale or transfer by any other mode for such period and subject to such terms and conditions as the Registrar or such other person may specify, of the prope1ty or any interest therein which is subject to a charge under [sub-section (1) of section 40, sub-section (l) of section 41], and sub-sections (1), (2) and (3) of section 42: Provided that no order shall be made under this section unless the member, past member or nominee, heir or legal representative of the deceased member has been served with a notice of the application and has failed to pay the debt or outstanding demand within thirty days from the date of such service. 84-A. Recovery of sums due to certain societies. – (1) Notwithstanding anything contained in sections 64, 69 and 78 on an application made by a cooperative society for recovery of arrears of its dues, the Registrar may, after making such enquiry as he deems fit, grant a certificate for the recovery of thee amount stated therein to be due as an arrear. (2) The certificate granted by the Registrar shall be final and conclusive proof of the arrears stated therein, and the same shall be recoverable as arrears of land revenue. 85. Execution of orders, etc. (2) The certificate granted by the Registrar shall be final and conclusive proof of the arrears stated therein, and the same shall be recoverable as arrears of land revenue. 85. Execution of orders, etc. – Every order or award passed or decision given by the Registrar under any provision of this Act, every order passed bye the Appellate or Revisional Authorities and every order made, decision given by the Liquidator, if not carried out – (a) on a certificate signed by the Registrar or any person authorized by him in this behalf be deemed to be decree of a Civil Court and shall be executed in the same manner as a decree of such Court; or (b) be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue; or (c) be executed by the Registrar or any other person empowered bye the Registrar in this behalf, by the attachment and transfer in the manner as may be prescribed or sale or sale without attachment of any property of the person or a society against whom the order, decision or award has been obtained or passed: Provided that any application for the recovery under clause (b) shall be made-(i) to the Collector and shall be accompanied by a certificate signed by the Registrar or by any person authorized in this behalf; and (ii) within five years from the date fixed in the order, decision ore award and if no such date is fixed, from the date of order, decision or award, as the case may be”. 11. From the provisions of the aforesaid sections, it is apparently clear that the detailed procedure has been prescribed for making recovery in cases of loss. 12 Counsel for the State has filed an application for adopting the return filed by the respondent No. 4. The respondent No. 4 has filed return to the petition alleging that in terms of the agreement entered into between the parties, the alternative and efficacious remedy is available to the petitioners. It is argued that there is a bar of jurisdiction of the Court under section 82 of the Act of 1960 wherein, it is specifically provided that no civil or revenue Courts shall have any jurisdiction in respect of any dispute. It is argued that there is a bar of jurisdiction of the Court under section 82 of the Act of 1960 wherein, it is specifically provided that no civil or revenue Courts shall have any jurisdiction in respect of any dispute. It is submitted that coordinate Benches of this Court has already entertained a writ petition being W. P. No. 9011 of 2019 and passed an order on 17-6-2019 and the petition was disposed of with the liberty to avail alternative and efficacious remedy available under the Act of 1960. It was pointed out that on complaint being made by the agriculturists, the matter was inquired into and the petitioners were found responsible for embezzlement of amount of Rs. 34,10,575/- by the inquiry officer i.e. Co-operative Inspector and he has issued notices to them on several occasions. He has brought to the notice of this Court the inquiry report dated 22-6-2019 Annexure R/4-5. From perusal of the inquiry report annexure R/4-5, it is seen that the notices were issued to the petitioners on 5-12-2018 asking him to deposit the entire records but the same were not deposited by him. On 8-5-2019, the petitioner Santosh Sharma was again noticed that he remained absent from the last two months and causing hindrance in dispensation of the important work of the government. It was further observed that an amount of Rs. 34 lakhs could not be paid to the concerning agriculturists due to absence of Santosh Sharma. It was pointed out that Santosh Sharma has withdrawn the amount of 9,15,000/- for the purpose of construction of a go-down but the construction of go-down is stopped for last three months. Therefore, there is every possibility that the amount was misutalized by petitioner Santosh Sharma. 13. Considering the over all aspect, the report was prepared by the inquiry officer holding the petitioner Santosh Sharma responsible for the loss being caused to the government to the tune of Rs. 34,10,575/-. In pursuance to the same, FIR has already been registered against him at Crime No. 127 of 2019 for the offence under section 409 of Indian Penal Code. The FIR was got registered in pursuance to the letter issued by the inquiry officer on 22-6-2019 addressing to SHO Rannod district Shivpuri. 34,10,575/-. In pursuance to the same, FIR has already been registered against him at Crime No. 127 of 2019 for the offence under section 409 of Indian Penal Code. The FIR was got registered in pursuance to the letter issued by the inquiry officer on 22-6-2019 addressing to SHO Rannod district Shivpuri. As far as the ground raised with respect to the alternative remedy is concerned, the Full Bench of this Court in the case of B. B. Verma (supra) has held that “rules which are being framed are having statutory force”. Therefore, if an act is being done in violation of any of the Rules or order passed in violation of any of the rules, then the writ petition directly under Article 226 is maintainable. 14. Further in the case of M. P. Rajya Sahkari Bank (supra), para 13 is relevant, which reads as under : “Learned counsel for the respondents has also submitted that the Co-operative society is not a State within the meaning of Article 12 of the Constitution, therefore, the writ petition is not maintainable. We need not go into this aspect as in view of the recent decision of this Act in Supriyo Basu and ors. vs. W. B. Housing Board and ors., (2005) 6 SCC 289 their Lordships have laid down what are the parameters for challenging the orders passed by the Co-operative Societies. It has been held that writ would be maintainable against a Co-operative society if it is established that a mandatory statutory provision of a statute has been violated. Therefore, nothing turns on this aspect of the matter”. 15. In the present case, the respondents have totally failed to demonstrate that the provisions with respect to the recovery as contemplated in relevant provisions i.e. Sections 83, 84, 84-A and 85 of the Act of 1960, are being followed by the respondents in the present case. Thus, the recovery order so far as issued against the petitioners are unsustainable. Even otherwise, the impugned order was issued by the Chief Executive Officer who is not competent to issue such directions. Thus, it is the Dy. Registrar of the Co-operatives to has taken action in pursuance to making recovery in cases of losses. Thus, the recovery order so far as issued against the petitioners are unsustainable. Even otherwise, the impugned order was issued by the Chief Executive Officer who is not competent to issue such directions. Thus, it is the Dy. Registrar of the Co-operatives to has taken action in pursuance to making recovery in cases of losses. It is further seen that only on the basis of the letter issued by the CEO and endorsement has been made directing the petitioners to deposit entire amount within three working days failing which, the FIR will be registered against them and in pursuance to the same, subsequently, the FIR has been registered. Thus, the impugned order without following due procedure as contemplated is bad in law and is unsustainable. As far as termination of the petitioners vide subsequent orders dated 13-6-2019 and 10-10-2019 are concerned, which are put to challenge by filing an amendment application annexure P/1A, it is seen that this Court has already stayed execution of the impugned order vide order dated 12-3-2019 but despite the same, taking a subsequent action, the respondents have terminated the services of the petitioners. The subsequent termination orders are again bad in law as no procedure was followed and inquiry was done prior to issuance of orders regarding recovery and fastening responsibility upon the petitioners and holding them liable for the losses being caused to the government, therefore, subsequent termination orders passed by the authorities are unsustainable. Even the direction for registration of FIR is also beyond the scope of the authorities without there being any inquiry into the matter. Thus, the termination orders are also unsustainable and are hereby quashed. The FIR is also in pursuance to the letter written by inquiry officer to the concerning SHO, therefore, the FIR registered against the petitioners for the reasons mentioned herein above, is also unsustainable for which, the petitioners have already moved a separate M.Cr.C under section 482 of Criminal Procedure Code for quashment of the FIR which was registered as M.Cr.C. No. No. 31479 of 2019 and the coordinate Bench of this Court vide order dated 30-7-2019 has already directed that no coercive action shall be taken against the petitioners till next date of hearing, taking into consideration the fact that the effect and operation of the impugned order in the writ petition has already been stayed vide order dated 12-3-2019. Thus, the impugned orders are unsustainable and hereby quashed. However, as there is a loss being caused to the State exchequer, therefore, in the interest of justice, the liberty is extended to the respondent authorities to take up the matter afresh and after conducting inquiry into the matter as provided under the provisions of sections 83, 84, 84A and 85 of the Act of 1960 and affording opportunity of hearing to the petitioners, matter be decided. 16. The petition is allowed. No order as to the costs. Cc as per rules.