1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1380 OF 2010 Janata Sahakari Bank Ltd. Pune .. Petitioner V/s Satish Pandurang Upasani & Ors. .. Respondents Mr. Kiran Bapat i/b Mr. Avinash H. Fatangare for the petitioner. Mr. Nitin A. Kulkarni for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 18TH JUNE 2010 P.C. : 1. Rule. By consent, Rule is made returnable forthwith. 2. Mr. Kulkarni waives service for respondent no.1. Respondent no.2 is a formal party being an Enquiry Officer. Service on respondent no.2 is therefore dispensed with. 3. Heard. 4. The petitioner challenges the order dated 30th March 2009 passed by the learned Judge, Cooperative Court No.1, Pune deciding against the petitioner the preliminary issue raised by the petitioner challenging jurisdiction of the 2 cooperative court. 5. The petitioner no.1 is a cooperative bank registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960 (for short “the Cooperative Societies Act”). The respondent no.1 was employed as an officer in the petitioner bank. On account of an alleged misconduct, services of the respondent no.1 were terminated by the petitioner after a departmental enquiry. The respondent no.1 filed a dispute in the Cooperative Court contending that the departmental enquiry was not proper and was vitiated. The findings of the Enquiry Officer were challenged on several grounds including a ground that the Enquiry Officer was a person having an interest in the subject matter of the dispute. The respondent further prayed for declaration that the enquiry proceedings was illegal and void ab initio as also prayed for quashing of the termination order issued in pursuance of an illegal enquiry. The petitioner contested the dispute by filing written statement. The petitioner objected to jurisdiction of the Cooperative Court on two grounds, namely (i) the dispute was not covered by section 91 of the Cooperative Societies Act, and (ii) termination of service cannot be set aside by a Cooperative Court as that would 3 virtually amount to passing an order of specific performance of a contract of personal service. The trial court framed a preliminary issue regarding jurisdiction of the Court and after hearing the parties, by its judgment dated 30th March 2009 held that it had jurisdiction to entertain and try the dispute. The decision was carried in appeal before the cooperative appellate court which confirmed the said decision by its order dated 9th October 2009. Both these orders are challenged in this writ petition. 6. The first contention of the petitioner is that the dispute is of a nature which is not covered by section 91 of the Cooperative Societies Act is covered by a decision of a Division Bench of this Court in Pralhad Vithalrao Pawar v. Managing Director & Anr., 1999(1) Bom. C.R. 840. In that case, the services of an employee of a cooperative sugar factory were terminated. In a proceeding arising out of challenge to the order of termination, the Division Bench, inter alia, framed the following issues for its consideration: “(b) Whether the termination of service of an employee who is not covered under the provisions of the Industrial Disputes Act, 1947 4 or the Bombay Industrial Relations Act, 1946, amounts to a dispute touching the management or business of a Society, within the meaning of section 91(1) of the Maharashtra Co-operative Societies Act, and (c) Whether the petitioners are entitled to claim the relief of reinstatement in service with back wages and continuity, in an appropriate legal proceeding.” The Division Bench answered these issues in para 18 of its decision as follows: (a) The termination of service of an employee like the petitioners (who do not fall within the purview of either the Industrial Disputes Act or Bombay Industrial Relations Act) by their employer (a Registered Co-operative Society) is a dispute touching the management and business of the Society, as defined under section 91(1) of the Co- operative Societies Act. 5 (b) The order of termination can be challenged before the Co-operative Court which has the powers to grant declaratory reliefs akin to the powers of the Civil Court under section 34 of the Specific Relief Act, 1963 viz. to give declaration that the termination order was illegal and the disputant continued to remain in service.” The Division Bench has clearly held that a dispute regarding termination of service of an employee is covered by section 91 of the Cooperative Societies Act. No other decision taking a contrary view was pointed out to me. In the circumstances, the first contention is required to be rejected. 7. As regards the second contention also, the Division Bench has held that the cooperative court has power to grant declarative reliefs akin to the power of the Civil Court under section 34 of the Specific Relief Act and to give declaration that the termination order was illegal and the disputant continued to remain in service. Learned counsel for the petitioner submitted that this part of the decision is contrary to a series of decisions of the Supreme Court including in Dr. S.B. Datta v. University of Delhi, 1959 S.C.R. 1236, wherein 6 the Supreme Court has categorically taken a view that except in three cases, namely (i) termination of service of a public servant dismissed in contravention of Article 311 of the Constitution of India, (ii) an employee protected under any of the Labour Laws which provides for reinstatement of a dismissed employee, and (iii) in case of an employee of a Statutory Body where it acts in breach of mandatory obligation imposed by a statute, an employee is not entitled to an order of reinstatement but appropriate remedy would be for damages. This aspect has also been considered by a Division Bench in para 16 of its decision in case of Pralhad Pawar (supra) It may be noted that the Supreme Court has in several cases held that an employee can be reinstated in certain circumstances which are exception to the rule that contract for personal service cannot be specifically enforced. The question, therefore, whether an employee falls under any of the exception where reinstatement is allowed is a question of fact to be determined at the hearing of the dispute. The Court obviously would have jurisdiction to decide that issue. In an appropriate case, a disputant may fail to get a declaration but that would not oust the jurisdiction of the Cooperative Court to hear and decide whether the declaration as prayed for by the petitioner can be granted. The 7 Cooperative Court would obviously have considered to decide the question whether reinstatement can be ordered in the facts and circumstances of the case. Jurisdiction of a court to decide that issue is not ousted. In the circumstances, the second contention is also required to be rejected. 8. For these reasons, there is no merit in the writ petition which is hereby dismissed with costs quantified at Rs.2,000/-. Rule is discharged. (D.G. KARNIK, J.)