1 ndm 901 wp.8889.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8889 OF 2010 Yeshwant Chandrakant Ghadge. ... Petitioner Vs. Mahabaleshwar Honey Producers Co-operative Society Ltd. and ors. ... Respondents -------- Mr. Uday Prakash Warunjikar for the Petitioner. Mr. R.M.Patne, AGP for Respondent No.1. Mr. Nitin A. Kulkarni for Respondent No.2. -------- CORAM : A.S.OKA, J. DATE : 23 rd November, 2010. P.C. 1 Heard the learned counsel appearing for the Petitioner, the learned counsel appearing for 2 nd respondent and the learned AGP for the 1 st respondent. 2 The dispute in the petition concerns election of the 1 st respondent – Society. Election program has been already notified. The last date of filing nomination papers was 14 th October, 2010. The list of eligible candidates was to be declared on 30 th October, 2010. The final list of candidates contesting the election was to be declared on 16 th November, 2010 and the polling is scheduled on 28 th November, 2010. The 2 nd respondent filed a nomination paper to which an objection was 2 raised by the Petitioner on the ground that 2 nd respondent has been convicted for the offence punishable under Section 48 (1) of M.R.T.U. & P.U.L.P. Act, 1971 (hereinafter referred to as “the said Act”). Reliance is placed on judgment and order dated 22 nd February, 2010 passed by the Labour Court by which 2 nd respondent was sentenced to pay fine of Rs. 1,000/- 3 The objection of the Petitioner was overruled and the returning officer passed an order accepting the nomination of the 2 nd respondent. 4 The learned counsel appearing for the Petitioner point out that though the list of eligible candidates was to be declared on 30 th October, 2010, the order at page No.22 of the petition shows that the objection was considered on 31 st October, 2010. He urged that before declaring list of eligible candidates on 30 th October, 2010, the objection raised by the Petitioner was not decided. 5 The learned counsel appearing for the Petitioner submitted that admittedly the 2 nd respondent had deposited the fine amount payable under the order of the Labour Court. He submitted that the order of conviction is challenged by the 2 nd respondent by approaching Industrial Court and there is no interim relief granted and the Industrial Court has rejected the prayer for interim relief. He submitted that on the date of 3 scrutiny, the order of conviction of the 2 nd respondent was operative. He placed reliance on the decisions of the Apex Court in the cases of K.Prabhakaran Vs. P.Jayarajan (2005) 1 Supreme Court Cases 754, Ravikant S. Patil Vs. Sarvabhouma S. Bagali (2007) 1 Supreme Court Cases 673 and B.R.Kapur Vs. State of T.N. and another (2001) 7 Supreme Court Cases 231. Inviting attention of the Court to the Section 55 of the said Act of 1971, he submitted that offence under sub-section (1) of Section 48 is cognizable. He relied upon Section 2 (c) of the Code of Criminal Procedure, 1973. He pointed out that under the provisions of Section 51 of the said Act, the amount of fine imposed is recoverable as land revenue and there is an identical provision in the form of Section 421 in the said Code of 1973. He submitted that 2 nd respondent is guilty of commission of a cognizable offence within the meaning of the said Code of 1973. He submitted that sub-clause (b) of clause 3 of Bye-law 17 (a) of the Society will apply and the 2 nd respondent stood disqualified. 6 I have considered the submissions. In view of the first grievance, the learned AGP was called upon to produce the original record. On page 22 of the petition, a photocopy of the order dated 30 th October, 2010 is annexed, which shows that figure ‘30’ has been changed to ‘31’ by correcting the figure ‘0’. Therefore, after having looked at the original order, the first contention cannot be accepted. The original order bears the date 30 th October, 2010. Thus, there is serious doubt whether, a copy of the order annexed to the petition is really true copy of the 4 original. 7 The learned counsel appearing for the Petitioner has placed on record a complete copy of the judgment of the Labour Court. The judgment shows that the 2 nd respondent was impleaded in the complaint as 1 st accused in his capacity as the chairman of a Co-operative Society. An order was passed by the Industrial Court directing the said society not to terminate the service of the complainant in the said criminal complaint. The allegation in the complaint is that the opponents in the complaint breached the said order of the Industrial Court. In the capacity as the chairman of the Society, the Labour Court found that 2 nd respondent has committed a breach of the order of the Industrial Court. Section 48 (1) of the said Act provides for penalty for non-compliance with the order under clause (b) of sub-Section (1) or sub-Section (2) of Section 30 of the said Act. It provides that for non-compliance of the order, a person can be convicted and be subjected to a punishment, which may extend to three months or with fine, which may extend to a sum of Rs.5,000/-. It is true that the fine amount has been deposited, but an appeal against the order of conviction is pending for final hearing before the Industrial Court and the order of conviction has not attained finality. 8 On bare reading of sub-clause (b) of clause 3 of the Bye-law No.17(A), a disqualification is incurred when a member is guilty of commission of a “criminal offence” (in Marathi “Faujdari Gunah”). The 5 Petitioner has been penalized for non-compliance with the order of the Industrial Court by a Co-operative Society of which he was the chairman and even the order of conviction has not attained finality in the sense that an appeal against the order of conviction is still pending. Clause (b) of the Bye-laws cannot be interpreted to mean that every order under sub- section (1) of section 48 of the said Act will attract disqualification under the said clause merely because the breach of an order of the Industrial Court is made a cognizable offence. In any case, 2 nd respondent was penalized in his capacity as the chairman of a Co-operative Society. The Society did not comply with the order. Whether the disqualification under clause (b) is attracted or not is a matter of debate. Therefore, at this stage, interference cannot be made in exercise of power in writ jurisdiction with the order of the returning officer by which nomination paper of the 2 nd respondent was held to be valid. Considering the aforesaid factual aspects, no interference can be made with the impugned order and the Petitioner will have to be relegated to remedy of challenging the result of the election in the event 2 nd respondent is elected. However, the finding recorded in this order as regards the disqualification is only a prima facie finding. No case is made out for interference in writ jurisdiction. Writ petition is rejected by keeping the remedy open. [ A.S.OKA, J ]