1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 2133/2007 (Bhaiyya Bakaramji Deshmukh VERSUS Asstt. Registrar, Co-op.Soc.s, Armori & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri V.A. Dhabe, counsel for the petitioner. Mrs. Wandile, Assistant Government Pleader for the R-1. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 15, 2008. By this petition, the petitioner impugns the judgment passed by the Cooperative Court, Nagpur on 12.08.2003 in Cooperative Case No.1097/1999 and that of the Cooperative Appellate Court dated 16.12.2005 in Appeal No.117/2003 confirming the judgment passed by the Cooperative Court on 12.08.2003. It is the case of the petitioner that his services came to be terminated after a period of 22 years of service on the basis of a show cause notice dated 21.11.1997 without holding a Departmental Enquiry against him. The petitioner was allegedly involved in the wheat scam and the order of termination was passed on 24.11.1997. The petitioner had approached the Labour Court initially but, the 2 complaint filed by the petitioner was dismissed on the ground that the petitioner was not a workman. Thereafter, the petitioner filed a dispute before the Cooperative Court seeking a relief of reinstatement with back wages. According to the petitioner, the order of dismissal/termination dated 24.11.1997 was liable to be set aside as the same was passed without holding any Departmental Enquiry against him. By the judgment dated 12.08.2003, the dispute filed by the petitioner was partly allowed by the Cooperative Court but, the relief of reinstatement and back wages was not granted to him. The petitioner, therefore, preferred an appeal before the Cooperative Appellate Court which was also dismissed by the judgment dated 16.12.2005. Both the Courts considered the decision of the Hon'ble Supreme Court in the case of U.P. Warehousing Corporation Versus C.K. Tyagi, reported in 1970 (1) LLJ 32 to refuse the relief of reinstatement with back wages. The judgments passed by the Cooperative Court and the Cooperative Appellate Court are impugned in the instant writ petition. 3 Shri Dhabe, the learned counsel for the petitioner, submitted that the Courts were not justified in following the decision reported in 1970 (1) LLJ 32 as Hon'ble Supreme Court was considering the case of 'termination' and not of 'dismissal'. According to the counsel for the petitioner, the petitioner was dismissed from service and the order dated 24.11.1997 was not an order of termination. The counsel for the respondents, however, supported the judgments passed by both the Courts. I have perused the judgments passed by both the Courts and have also perused the judgment of the Hon'ble Supreme Court in the case of U.P. Warehousing Corporation Versus C.K. Tyagi. It has been observed by the Supreme Court in U.P. Warehousing Corporation Versus C.K. Tyagi's case that no declaration to enforce a contract of personal service should be normally granted but, there are three well recognised exceptions to the Rule; They are : 1) The case of a public servant who has been dismissed from service in contravention of Article 311 of the Constitution of India; 4 2) In the case of an employee who could be reinstated in an industrial adjudication by the Labour Court or an Industrial Tribunal; 3) In the case of statutory body, its employee could be reinstated wherein it has acted in breach of the mandatory obligation imposed by the statute. Further the Supreme Court took a similar view in the case of Integrated Rural Development Agency Versus Ram Pyare Pandey, reported in 1995(1) CLR 781. It was held in the subsequent decision that in case of an employees who do not fall in any of the abovementioned three exceptions, an order passed by the employer in breach of their staff regulations could be merely a breach of terms and conditions, but, would not be a breach of any statutory obligations and, therefore, such employees are not entitled for the relief of reinstatement in service. It was further held that in the absence of the statutory requirements, the Court should not ordinarily force an employer to recruit or retain in service, an employee not required by the 5 employer when the employee does not fall within the three exceptions laid down in the case of U.P. Warehousing Corporation Limited. Since the petitioner in this case did not fall in any of the three exceptions laid down by the Hon'ble Supreme Court in the case of U.P. Warehousing Corporation Limited, the Cooperative Court and the Cooperative Appellate Court rightly refused to grant the relief of reinstatement. The submission made on behalf of the petitioner that the law laid down by the Supreme Court in the case of U.P. Warehousing Corporation Limited would apply only in case of termination and not in case of dismissal and, therefore, the same ought not have been followed in the case of petitioner, is liable to be rejected for the reason that the petitioner has himself stated in so many documents that he was dismissed by the order dated 24.11.1997. Even otherwise, the submission is ill founded as in the case of U.P. Warehousing Corporation Limited, the respondent therein was dismissed from service and not terminated. The impugned orders are just and proper 6 and based on the law laid down by the Hon'ble Supreme Court. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE APTE