1 WP No.362/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.362/2011 The Dwarkadas Mantri Nagri Sahakari Bank Ltd. Beed, Throgh its Chief Executive Officer, Beed. - PETITIONER VERSUS The State of Maharashtra and others. - RESPONDENTS ***** Mr.Bangar NP, Advocate for Petitioner; Mr.KH Ghute-Patil, AGP for Resp.Nos.1 & 2; Mr.SS Choudhari, Adv. for Resp.No. 3 ----- CORAM : K.U.CHANDIWAL, J. DATE : 9th DECEMBER, 2011. PER COURT : 1) Heard extensively. The petitioner bank questions order dated 3rd May, 1999 recorded by Deputy Registrar, Cooperative Societies, Beed, initially asking to consider case of Respondent No.3 and thereafter directing to reinstate the Respondent no.3 by virtue of powers under Section 79 of the Maharashtra Cooperative Societies Act, 1960 (hereinafter to be referred as the said Act). 2) The directions were questioned by the petitioner before the learned Appellate Authority 2 WP No.362/2011 – Maharashtra State Cooperative Appellate Court in Appeal No.49/1990 and by order dated 3rd May, 1991, the appeal of the petitioner bank was allowed and the orders/letter issued by Deputy Registrar, Cooperative Societies dated 28th April, 1990 was quashed and set aside. Feeling aggrieved by the orders of the Appellate Court, the Respondent No.3 - Shamsundar, preferred writ petition No.2354/1991 and by order dated 11.1.2010, the petition was allowed holding that the Cooperative Appellate Court had no jurisdiction to entertain the appeal itself and it should have directed the Bank to prefer a revision petition or to resort to any other remedies against the order passed by the Dy. Registrar, Cooperative Societies. 3) Consequently, the order of the Deputy Registrar, Cooperative Societies, dated 3rd May, 1990 remained in force, which is questioned by the Bank. 4) It is apparent, appointment of the Respondent no.2 was not regular appointment under any advertisement. It was not even by following the staffing pattern of the Bank. It was purely the appointment for three months, as was indicated in the letter dated 13.4.1988. However, such temporary appointment remained in 3 WP No.362/2011 force from 13.4.1988 to 12.4.1990, as and by way of working as Assistant Manager in the Bank. Auditor having raised objection in Audit report, the bank was constrained to take appropriate resolution on 28th March, 1990, and consequently, services of the Respondent no.3 were terminated. 5) The exercise of powers by the Deputy Registrar, CS in terms of Section 79 of the Act was indeed uncalled for. Section 79 of the Act, reads as under: “79. Registrar’s power to enforce performance of obligations - (1) The registrar may direct any society or class of societies, to keep proper books of accounts with respect to all sums of money received and expended by the society, and the matters in respect of which the receipt and expenditure take place all sales and purchases of goods by the society, and the asserts and liabilities of the society, and to furnish such statements and returns and to produce such records as he may required from time to time; and the officer or officers of the society shall be bound to comply with his order within the period specified therein; (2) Where any society is required to take any action under this Act, the rules or the bye-laws or to comply with an order made under the foregoing sub-section, and such 4 WP No.362/2011 action is not taken - (a) within the time provided in this Act, the rules or the bye laws, or the order as the cae may be, or (b) where no time is so provided, within such time, having regard to the nature and extent of the action to be taken, as the Registrar may specify by notice in writing, the Registrar may himself or through a person authorized by him, take such action at the expense of the society; and such expense shall be recoverable from the society as if it were an arrears of land revenue. (3) Where the Registrar takes action under sub-section (2) the Registrar may call upon the officer or officers of the society whom he considers to be responsible for not complying with the provisions of this Act, the rules or the bye-laws or the order made under sub-section (1) and after giving such officer or officers an opportunity of being heard, may require him or them to pay to the society the expenses paid or payable by it to the State Government as a result of their failure to take action and to pay to the asserts of the society such sum not exceeding twenty five rupees as the Registrar may think fit for each day until the Registrar’s directions are carried out.” 6) The powers do not contemplate issuance of a direction to employer, like the Bank, to reinstate the employee, who was appointed purely 5 WP No.362/2011 on temporary basis and that too without following requisite norms/procedure. The termination of the Respondent no.3 that was questioned before the Deputy Registrar and exercise of powers under Section 79 of the said Act was in itself facing lack of jurisdiction and apparently was a nullity. The bank could have, at appropriate forum, challenged it, however, having not done so, the Bank now questioned the same in writ jurisdiction and since the order itself was beyond the scope and purview of the authority vested in Deputy Registrar, it is set aside. 7) Writ petition is allowed as above with no order as to costs. (K.U.CHANDIWAL) JUDGE bdv/