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Rajasthan High Court · body

2023 DIGILAW 2263 (RAJ)

Bheru Lal Patel v. State of Rajasthan

2023-12-15

REKHA BORANA

body2023
ORDER : 1. The matter comes up on an application under Article 226(3) of the Constitution of India for vacation of the interim order dated 03.11.2022 whereby the proceedings before the Registrar in pursuance to the notices dated 30.05.2022 (Annexure-5) and 22.07.2022 (Annexure-7) had been stayed. 2. The present writ petition has been preferred by the petitioner with the following submissions: (i) Order dated 30.05.2022 (Annexure-5) was issued by respondent No. 3 Institutional Development Officer (IDO) under Section 55 of the Rajasthan Co-operative Societies Act, 2001 (hereinafter referred to as 'the Act of 2001') whereby an Enquiry Officer was appointed to enquire into the allegations as made vide complaints by the Presidents of various Primary Milk Samitis against the Chairman and other members of the Managing Board of Udaipur Dugdh Utpadak Sahakari Sangh Limited and certain other Boards/Samiti. The said order specified two points for enquiry. Vide amended order dated 03.06.2022, third point for enquiry was also added vide which it was specified that if during the enquiry proceedings any other point for enquiry is found, the same would also be included. (ii) The enquiry in terms of Section 55(1) was conducted by the Enquiry Officer and in terms of the enquiry report dated 17.06.2022 submitted by him, the result of the enquiry was declared on 05.07.2022. As per the said result, certain officials/members of the Management Board were prima facie found guilty. Therefore, in terms of Section 57(1) of the Act of 2001, notice dated 22.07.2022 was served on all 42 members, specifying the details of the allegation/charge as levelled against them and calling upon them to appear on 08.08.2022 along with the reply and supporting documents, if any. So far as the present petitioner is concerned, he was alleged to have received bonus/ex gratia/ incentive/memento/gift amounts dehors the Rules. The amount qua said illegally received gifts/incentive was quantified to be Rs. 1,07,972/-. (iii) The petitioner submitted a detailed reply to notice dated 22.07.2022 on 16.08.2022. However, without considering the objections raised by him in the reply, the Enquiry Officer as appointed in terms of Section 57(1) of the Act of 2001, submitted his Enquiry Report dated 17.08.2022 whereby the petitioner was found guilty of receiving the above mentioned amount/gifts/mementos dehors the Rules. (iii) The petitioner submitted a detailed reply to notice dated 22.07.2022 on 16.08.2022. However, without considering the objections raised by him in the reply, the Enquiry Officer as appointed in terms of Section 57(1) of the Act of 2001, submitted his Enquiry Report dated 17.08.2022 whereby the petitioner was found guilty of receiving the above mentioned amount/gifts/mementos dehors the Rules. In terms of said Enquiry Report, the Enquiry Officer(Additional Registrar, Co- operative Societies, Jaipur) recommended for action in terms of Section 57(2) read with Rule 76(2) of the Rajasthan Co-operative Societies Rules, 2003 (hereinafter referred to as 'the Rules of 2003'). In pursuance thereof, notice dated 29.08.2022 was served calling upon all the 42 incumbents, including the petitioner, to appear on 16.09.2022 and to submit their defence on the said date. It is against the said notice dated 29.08.2022 (Annexure-11) and all the prior notices that the present writ petition has been preferred. 3. Vide interim order dated 03.11.2022, the proceedings before the Registrar in pursuance to the notice dated 30.05.2022 (Annexure-5) and notice dated 22.07.2022 (Anneuxre-7) were stayed and an application for vacation of the said interim order has been preferred on behalf of the respondents. Learned Advocate General made the following submissions: (a) The present writ petition itself is not maintainable in view of the alternative remedy of revision under Section 107 of the Act of 2001. Section 107 not only provides for a revision against an order passed by any officer subordinate to the Registrar/Registrar but also empowers the Registrar/State Government to pass an interlocutory order. Therefore, the interim order if any, can even be granted by the State Government/Registrar under Section 107 and hence it cannot be said that the said remedy is not effective or efficacious one. (b) Vide the interim order the proceedings in pursuance to notices dated 30.05.2022 and 22.07.2022 have been stayed whereas even prior to passing of the interim order dated 03.11.2022, the proceedings in pursuance to the said notices had been completed and even the Enquiry Report had been submitted on 17.08.2022. Thereafter, even the notice dated 29.08.2022 and subsequent notice dated 19.09.2022 were issued/served in terms of Section 57(2) of the Act of 2001. Thereafter, even the notice dated 29.08.2022 and subsequent notice dated 19.09.2022 were issued/served in terms of Section 57(2) of the Act of 2001. The petitioner even filed a reply to the said notices and after considering the same, it was concluded that the charge in terms of Rule 56(3) of the Rules of 2003 be framed against the petitioner. Vide notice dated 11.10.2022, the charge as framed was communicated to the petitioner and he was called upon to respond to the same and to submit his defence to the same on 28.10.2022. However, the petitioner did not present himself on 28.10.2022 and hence he was granted an opportunity to appear on 07.11.2022. Meaning thereby, much water had flown even before the passing of the interim order dated 03.11.2022 and therefore too, the same deserves to be vacated. (c) Even otherwise, the enquiry in terms of Section 55 of the Act of 2001, which is under challenge, is prima facie only a fact finding enquiry. The petitioner cannot be said to be aggrieved of the same as after the said enquiry been completed and the Enquiry Report having been submitted, the notice in terms of Section 57 of the Act has been issued to him wherein he would be afforded complete opportunity of hearing and to raise his defence whatsoever. (d) No final order has been passed till date of which the petitioner can be said to be aggrieved of. Therefore, the writ petition is premature. Further, even if any final order is passed against the petitioner, the remedy of revision/appeal in terms of Act of 2001 would even otherwise be available to him. By all means, the present writ petition cannot be said to be maintainable and hence the interim order dated 03.11.2022 deserves to be vacated. (e) Even on merits, it is clear on record that the petitioner was found guilty in the preliminary enquiry as conducted in terms of the law governing the Co-operative Societies. However, the said preliminary enquiry cannot be termed to be a final decision and staying the enquiry proceedings undertaken totally in consonance with law would amount to the grant of final relief as prayed for by the petitioner in the present writ petition. 4. However, the said preliminary enquiry cannot be termed to be a final decision and staying the enquiry proceedings undertaken totally in consonance with law would amount to the grant of final relief as prayed for by the petitioner in the present writ petition. 4. Responding to the arguments as raised by learned Advocate General, learned counsel for the petitioner submitted that the complete enquiry proceedings as initiated against the petitioner are malafide and just with an intention to disqualify him so as to prevent/debar him from contesting the next election. Learned counsel submitted that the fact that the complete proceedings are malafide, is evident from the fact that the objections as raised by him vide his reply had not even been considered by the Enquiry Officer in his Enquiry Report dated 17.06.2022. Learned counsel further submitted that the impugned notices stood vitiated even for the reason that process of enquiry as provided under Rule 75 of the Rules of 2003 has not been followed. The first notice as issued is not by the Registrar which ought to have been issued by him in terms of the Rules of 2003. Further, the enquiry could have been initiated in terms of Section 55 of the Act of 2001 only on an application by not less than one-tenth of the total number of members of the Society. There being no such application moved by one-tenth of the members, the enquiry itself stood vitiated. Further, in terms of Section 55, an enquiry could be held by the Registrar only qua matters pertaining to the constitution, working and financial condition of a Co-operative Society. The enquiry in terms of Section 55 can by no means be conducted against an individual member, therefore too, the enquiry stood vitiated. Learned counsel further submitted that all said and done, the charges as levelled against him itself are totally contrary to the resolution dated 29.05.2019 as passed by the Board whereby the acceptance/receipt of bonus/incentive and Ghee was held to be permissible. Learned counsel submitted that it is clear on record that the respondent authorities are bent upon to hold the petitioner guilty and hence he could not have gone for alternative remedy of revision before the same officer who concluded against him. With above submissions, learned counsel prayed that the interim order dated 03.11.2022 be confirmed till the final disposal of the present writ petition. 5. With above submissions, learned counsel prayed that the interim order dated 03.11.2022 be confirmed till the final disposal of the present writ petition. 5. In rejoinder, learned Advocate General appearing for the respondents submitted that the reliance of the petitioner on resolution dated 29.05.2019 is totally uncalled for as; firstly, the resolution of a Board cannot override the bye-laws of the Society which provide that the services of all the members of the Board would be free and secondly, it only entitle the employees and not the members to receive the amounts as bonus/ex gratia. So far as the initiation of the inquiry by the Registrar in terms of Section 55 is concerned, learned counsel submitted that the provision itself provides that an inquiry can be initiated by the Registrar either on an application by the members of the committee/society or of his own motion. Further, Section 55 envisages holding of an enquiry into the working of a Co-operative Society. The working of a Society naturally, would mean the working of the members of the Society/Board only therefore, the impugned notices cannot be termed to be illegal or malafide on any count. 6. Heard learned counsels on the stay petition and perused the material available on record. 7. So far as the initiation of the enquiry by the Registrar in terms of Section 55 of the Act of 2001 is concerned, this Court is of the prima facie opinion that the same is totally in consonance with the provision. As is clear from the provision itself, the Registrar has ample power to initiate an enquiry on his own motion. A perusal of the notice dated 30.05.2022 (Annexure-5) itself shows that certain complaints were received from the Presidents of various Primary Milk Samitis and in pursuance of the said complaints of irregularities, the enquiry was sought to be initiated by the Registrar of his own motion. 8. So far as the issuance of the notice by IDO is concerned, as is clear on record, vide notification dated 30.06.2014, the Institutional Development Officer was delegated powers of the Registrar to order for an enquiry under Section 55 of the Act of 2001, Section 4(2) of Act of 2001 provides that the government may, by general or special order, delegate to any officer the powers of the Registrar under the Act of 2001. Therefore, it cannot be concluded that the notice issued by the IOD was not within his competence. 9. So far as the ground of the process under Rule 75 having not been followed is concerned, this Court is of the prima facie opinion that the said ground is also not tenable. A perusal of the record shows that notice in terms of Section 55 was issued on 30.05.2022 and even the result of the Enquiry Report as conducted was declared on 05.07.2022. The notice in terms of Section 57(1) was thereafter issued on 22.07.2022 to which even a reply was filed by the petitioner and a bare perusal of the Enquiry Report dated 17.05.2022 makes it clear that the objections/reply as raised/filed by the petitioner were/was very much taken into consideration by the Enquiry Officer before reaching to the conclusion. Thereafter, the notice in terms of Section 57(2) was issued whereby also, complete opportunity to the petitioner to submit his defence has been granted. Therefore, it cannot be concluded that the process as required in terms of law has not been followed. 10. What can be concluded from the above facts and the provisions governing the enquiry is that only a preliminary enquiry has been conducted in the matter which can be termed to be a fact finding enquiry to reach to a conclusion whether any charge can be framed against an incumbent so as to hold an inquiry/trial in terms of Section 57(2) of the Act of 2001. None of the Enquiry Reports or the impugned notices can be termed to be final orders. It is only after the completion of the proceedings under Section 57(2) of the Act of 2001 that the final order would be passed. As held in Kamal Mehta v. Registrar, Cooperative Societies, Rajasthan, Jaipur & Ors.; S.B. Civil Writ Petition No. 3588/2013 (decided on 30.04.2013), it cannot be concluded that any prejudicial decision has been taken against the petitioner as the enquiries under Sections 55 as also 57(1) of the Act of 2001 are fundamentally administrative in nature. It is only after completion of the said enquiry that the enquiry partakes the character of a quasi judicial inquiry on the issuance of notice under Section 57(2) of the Act of 2001. It is only after completion of the said enquiry that the enquiry partakes the character of a quasi judicial inquiry on the issuance of notice under Section 57(2) of the Act of 2001. Further, it is also clear on record that prior to the date of passing of the interim order dated 03.11.2022, the notice under Section 57(2) of the Act of 2001 had already been issued/served on the petitioner. Furthermore, as clear on record, the petitioner had been called upon vide notice dated 29.08.2022/19.09.2022 to submit his defence and evidence-oral as well as documentary in support of his defence. Therefore, the petitioner would definitely have the complete opportunity to plead/defend his case as well as to prove that he cannot be held guilty of the charges as levelled against him. By all means, it cannot be concluded that any final order has been passed against the petitioner of which he can be said to be aggrieved of. 11. So far as the ground raised by the learned counsels regarding the charges as framed against the petitioner are concerned, this Court does not deem it necessary to advert into the same at this stage as that would clearly affect the merits of the writ petition as well as the enquiry proceedings initiated in pursuance to the notice dated 29.08.2022/19.09.2022. 12. In view of the above analysis and observations, this Court is not inclined to extend/confirm the interim order dated 03.11.2022. The application under Section 226(3) of the Constitution of India as preferred by the respondents is therefore allowed and the interim order dated 03.11.2022 is hereby vacated. 13. The stay petition stands disposed of accordingly. 14. List the writ petition for hearing on 15.01.2024.