- 1 - 1520 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.1520 OF 1993 Mr.Pandurang Narayandas Sarda .. Petitioner 940, Shaniwar Peth, Satara-415 002 vs 1. The State of Maharashtra through the Additional Government Pleader, High Court (A.S) Bombay. 2.The District Deputy Registrar of Cooperative Societies,Satara 3. Janata Sahakari Bank Limited Bhawani Peth, Satara ..Respondents Mr.S.S.Shah for Petitioner Mr.R.M.Patne AGP for Respondents Mr.Bhanage for the 3rd Respondent CORAM: A.S.Oka, J DATE: 8th October, 2010 ORAL JUDGMENT 1. By this Writ petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the judgment and order dated 26th March, - 2 - 1520 1993 passed by the District Deputy Registrar, Cooperative Societies, Satara, District, Satara by which in exercise of powers vested under bye law No.39 (1) b) of the bye-laws of the 3rd respondent society, a sanction was accorded by the District Deputy Registrar to the resolution dated 9th November, 1990 passed by the board of directors of third respondent Cooperative Bank by which the employment of the petitioner was terminated. Relevant bye law reads thus Bye law 39 (I) (b) “ The powers of the Board of Directors shall be as follows : (a) .................. (i) To appoint, to suspend, punish or dismiss all salaried servants of the Bank, provided that the appointment and dismissal of the Manager shall be made with the previous approval of the District Deputy Registrar. “ 2. The petitioner was employed as a manager of third respondent bank. A resolution was passed on 9th November,1990 by the board of directors of 3rd - 3 - 1520 respondent-cooperative bank, of removal of petitioner from the employment of third respondent-bank as a manager. The resolution records that on 20th October, 1990 time was sought by the petitioner of 1 1/2 months to submit his explanation. On 9th November, 1990 it was resolved that further time should not be granted. It was the resolved that it was dangerous to allow the petitioner to run the affairs of the bank as he has misused his office. It was stated that board of directors has lost faith in the petitioner and therefore, a resolution was passed removing the petitioner from employment. An application was made by the 3rd respondent to the District Deputy Registrar seeking approval for the removal of the petitioner from employment. An order was passed on 2nd July, 1991 rejecting the prayer made by 3rd respondent for grant of approval. An application was made by the 3rd respondent on 6th August,1990 to the District Deputy Registrar for review of the said order dated 2nd July,1991 and a prayer was made for grant of approval to the resolution dated 9th November, 1990. It appears that the request made by the petitioner was not acceded to by the District Deputy Registrar. Therefore,a revision application - 4 - 1520 was preferred by the 3rd respondent before the Joint Registrar of Cooperative Societies. The said Revision application was partly allowed by passing order of remand with a direction to the District Deputy Registrar to give an opportunity of being heard to the petitioner and the 3rd respondent-bank with reference to application dated 6th August,1991 and thereafter issue appropriate order in accordance with law. The petitioner challenged the said order by filing a writ petition in this Court. The writ petition was disposed of by judgment and order dated 3rd March, 1993 by a division bench of this Court. 3. While disposing of the writ petition, this Court observed that order of remand was not disturbed. This Court observed that the District Deputy Registrar should consider the application of the 3rd respondent for seeking approval for removal of the petitioner from service. The 3rd respondent was directed to reinstate the present petitioner in service with back wages from July, 1991. Thereafter, the impugned order has been passed by the District Deputy Registrar granting sanction under the bye- law. - 5 - 1520 4. The first submission of the learned counsel appearing for the petitioner is that the order impugned has been passed on application for review dated 6th August, 1991.He submitted that earlier application made by the 3rd respondent for grant of approval was rejected by a speaking order and what was before the District Deputy Registrar was an application for review. He submitted that there is no power vesting in the District Deputy Registrar under the provisions of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as the said Act) to review his earlier decision. He submitted that the division bench directed the District Deputy Registrar to decide the application in accordance with law and by exercising the powers of review the District Deputy Registrar could not have set aside his original order dated 2nd July, 1991. He submitted that the application for review made by the 3rd respondent ought to have been dismissed. He submitted that the District Deputy Registrar committed an error by considering the original application for grant of approval in as much as he could - 6 - 1520 have considered only the application for review. 5. Learned counsel submitted that the application has been hurriedly decided by the District Deputy Registrar. He pointed out that though the District Deputy Registrar had fixed the matter on 17th March, 1993, no notice of the said date was given to the petitioner. He submitted that only on the basis of the notice pasted on the door of the premises of the petitioner that he came to know that hearing has been fixed on 23rd March, 1991. He pointed out that on 23rd March, 1991, he attended the office of the District Deputy Registrar along with his advocate and made a request to issue directions to the 3rd respondent to give copies of the documents as per letter dated 24th November, 1990. He submitted that no proper opportunity of being heard was given by the District Deputy Registrar to the petitioner. He submitted copies of the documents were not supplied and even the inspection of the documents relied upon by the 3rd respondent was not at all given. He, therefore, submitted that the impugned order is vitiated by non-compliance - 7 - 1520 with principles of natural justice. 6. Lastly, the learned counsel submitted that as ordered by the Division Bench, from the date of reinstatement, till the date of the impugned order, the entire salary and other dues of the petitioner have not been paid. 7. Learned counsel appearing for the 3rd respondent invited attention of the Court to the decision of the division bench. He submitted that as per the directions of this Court, the District Deputy Registrar was required to consider afresh the proposal of the 3rd respondent for grant of approval in accordance with law. He submitted that in view of the directions issued by the division bench a fresh consideration of the original application of the 3rd respondent for grant of sanction was required to be made and the same has been accordingly made. He submitted that looking to the seriousness of the allegations against the petitioner and loss of confidence of the management, the action of removal has been taken and the District - 8 - 1520 Deputy Registrar has rightly granted sanction. He submitted that according to the 3rd respondent, practically entire dues of the petitioner have been paid and what remains to be paid is a sum of Rs.40,319/-. An affidavit of the manager of the 3rd respondent is tendered today stating that the 3rd respondent is willing to pay the said amount to the petitioner or is willing to adjust the said amount against the amount outstanding at the foot of the housing loan account of the petitioner. He submitted that no interference is called for. 8. Learned counsel appearing for the petitioner submitted that in the revision application preferred by the 3rd respondent for challenging the order passed on review application dated 6th August, 1991, an order of remand was passed to the District Deputy Registrar and the said order of remand has been affirmed by the division bench. He submitted that a fresh consideration of original application could not have been made as the remand was for considering the review application afresh. - 9 - 1520 9. I have carefully considered the submissions. It must be noted here that the power vesting in District Deputy Registrar under the relevant bye law is only of grant of approval to the action of dismissal of the manager. The power to adjudicate the question whether a case of dismissal of the manager is made out on merits is not conferred upon the District Deputy Registar. All that the District Deputy Registrar has to consider is whether there is material for taking action and whether any illegality has been committed by the society. After the application made by the 3rd respondent for grant of approval was rejected, a review application dated 6th August, 1991 was filed by the 3rd respondent for review of the order rejecting the said application. 10. The operative part of the order passed by the Joint Regional Registrar on the said Revision Application preferred by the 3rd respondent reads thus : “ Revision Application No.43/1991-92 is hereby partly allowed. The case is remanded back to the District Dy.Registrar, C.S.Satara with the direction that opportunity may be given to applicant bank and Shri Sarada with reference to application dt. 6.8.1991,. After hearing both the - 10 - 1520 parties he should form his independent opinion and issue appropriate orders, according to law as expeditiously as possible preferably within a period of 2 months from the date of this order. “ 11. The operative part of the aforesaid order passed in revision application indicates that the order of remand was passed on application dated 6th August, 1991. The matter was taken by the petitioner to this Court. In paragraph nos. 3 and 4 of its judgment, this Court has noted the facts of the case. In paragraph 4 this Court has observed thus : “ The Divisional Joint Registrar vide his impugned order dated 1.12.1992 allowed the said Revision Application partly and remanded matter to the District Deputy Registrar for reconsideration. “ 12. The submissions of the learned counsel for the petitioner noted by this Court in paragraph 5 read thus : “ Learned counsel appearing in support of the petition, urged that until the District Deputy Registrar approves any proposed action of Respondent no.4, the petitioner cannot be suspended and/or removed. “ (Underline supplied) - 11 - 1520 13. In paragraph 6 of the judgment, the division bench noted the submission of learned counsel appearing for the 3rd respondent that a resolution to remove the petitioner was passed by the board of directions under the bye laws of the societies and that charges against the petitioner were of serious nature. In paragraph 7, the division bench held that the petitioner cannot be placed under suspension for a period of more than six months and therefore the continuation of the suspension was not sustainable. In paragraph 7, the division bench proceeded to observe thus : At the moment, we do not disturb the order of remand and let the District Deputy Registrar consider the application made by respondent no. 4 seeking approval for removal of the petitioner from the service. The District Deputy Registrar is further directed to hear the parties and pass appropriate orders in accordance with law. “ (Underline supplied) 14. In paragraph 3 of the judgment,the Division Bench observed that ordinarily this Court would not have disturbed an order of remand but in the facts of the case, the impugned order was required to be modified. Thus, reading paragraph 3 with observations in paragraph 7, - 12 - 1520 though the order of remand to the District Deputy Registrar was not disturbed, the modification made by the Division Bench was of directing the District Deputy Registrar to consider afresh the proposal of the 3rd respondent to grant approval to the resolution of removal and not the review application. The order of remand impugned in the Writ Petition directed that application dated 6th August,1991 for review shall be reconsidered. However, the said order of remand was expressly modified by the division Bench and the District Deputy Registrar was directed to consider the prayer made by the 3rd respondent seeking approval for removal of the petitioner from service. It is specifically observed by the division bench in paragraph 3 that the order of remand was modified. If the direction in paragraph 7 is taken into consideration, it is obvious that the order of remand for reconsideration of application dated 6th August, 1991 was modified and the District Deputy Registrar was directed to consider the request of the 3rd respondent for grant of approval on merits. Hence, the argument that only the application for review was remanded to the District Deputy Registrar cannot be accepted. The division bench - 13 - 1520 directed reinstatement of the petitioner as the suspension was found to be illegal. Therefore, there was no error committed by the District Deputy Registrar when he considered the original prayer for grant of approval. 15. A grievance is made that no proper opportunity of being heard was accorded to the petitioner by the District Deputy Registrar. In paragraph 14 of the impugned order, the District Deputy Registrar has noted the submissions made by the learned counsel Mr.Divekar appearing for the petitioner in detail. In fact, written statement was filed on behalf of the petitioner in which one of the objection was that notice dated 23rd March, 1993 was for short duration. 16. The District Deputy Registrar has considered the question whether resolution was passed in accordance with law. In paragraph 20,he has observed that the case of the petitioner was not covered under the relevant labour laws. He has referred to the decision of the inspection committee of the 3rd respondent consisting of Chairman and directors which after examination of the documents came to the conclusion that it was not safe to - 14 - 1520 continue the petitioner and that the 3rd respondent-bank was not safe in the hands of the petitioner. The Resolution dated 9th November, 1990 passed by the board of directors of 3rd respondent takes a note of the serious allegations against the petitioner including allegations of misappropriation. The resolution clearly notes that the management had lost faith and confidence in the petitioner and therefore, he should not continue to hold an important post of manager of the 3rd respondent- bank. 17. The fact that the petitioner was holding the post of manager and there was loss of faith has been taken into account by the District Deputy Registrar. In paragraph 4 onwards in the impugned order, the District Deputy Registrar has noted various allegations against the petitioner regarding default in taking action for recovery of the loan advanced to the petitioner, his wife and his family. The District Deputy Registrar observed that this was a case of loss of faith by the 3rd respondent and that is why no departmental inquiry has been conducted. Looking to the said order, it must be stated that all - 15 - 1520 relevant aspects have been taken into consideration by the District Deputy Registrar while passing order granting approval. It must be noted here that this Court is dealing only with merits of the order granting approval in as much as substantive challenge in prayer clause (a) is only to the order dated 26th March, 1993 of the District Deputy Registrar and a relief of reinstatement is claimed by setting aside the order dated 26th March, 1993. Therefore, this Court is not called to independently decide the issue of illegality of resolution dated 9th November, 1990 and the power of 3rd respondent to remove the petitioner. Suffice it to say that no interference can be made with the impugned order in exercise of Writ jurisdiction. 18. The other controversy is whether in terms of order of reinstatement passed by the division bench, the entire amount has been paid to the petitioner up to 26th March, 1993. The 3rd respondent has filed an affidavit of its Manager stating that according to the 3rd respondent, an amount of Rs.40,319/- is due and payable to the petitioner and the bank is willing to pay the amount or to adjust the - 16 - 1520 same against outstanding loan amount repayable by the petitioner. The affidavit tendered today is taken on record and marked ‘X’ for identification. The statements made therein especially in paragraph 6 are accepted. However, this Court has not made any adjudication on the amount payable to the petitioner as the learned counsel appearing for the petitioner has disputed that only a sum of Rs.40,319/- is due and payable. This disputed question cannot be decided in a Writ Petition. All questions in that behalf are kept open to be agitated in appropriate proceedings. 19. Hence, there is no merit in the petition and the same is rejected. Rule is discharged with no order as to costs. A.S.Oka, J