^'-:-?w^ .- .•'^•'iy^' -..*-''SL':?if:7^^'" ..,<..T;*l^.s^' ^L^" .-••/" y'.:'"' ^. ^ '^ ' .-^•'1' 'Ki^'" IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C| N0.9^B]-OF2009 PETITIONER/ NON-APPLICANT N0.1 PETITIONER/ NON-APPLICANT N0.2 PETITIONER/ NON-APPLICANT N0.5 PETITIONER/ NON-APPLICANT N0.6 PETITIONER/ NON-APPUCANT N0.7 PETITIONER/ NQiN-APPLICANT N0.9 e?r 1. Raniesh Tiwari, S/o Late Manharan Lal Tiwari, aged about 57 years, President, Amrapali Grih Nirman Sanstha Simit, B/23, PacKpedi Naka, Raipur, Tahsil &, District Raipur (CG). 2. Ashok Surana, S/o Chandanmal Surana, aged about 52 years, Vice President, Amrapali Grih Nirinan Sanstha Simit, A/5, Pachpedi Naka, Raipur, Tahsil 8s District Raipur (CG). 3. Smt. Sudha Shukla, W/o Dr. Lalji Shukla, aged about 68 years, Director, Amrapali Grih Nirraan Sanstha Simit, C/12, Pachpedi Naka, Raipur, Tahsil SE District Raipur (CG). 4. Smt. Rajni Baidya, W/o V.R. Baidya, aged about 45 years, Director, Amrapali Grih Nirman Sanstha Simit, B/6, Pachpedi Naka, Raipur, Tahsil SE District Raipur (CG). 5. Ram Bharos Dewangan, S/o Kumar Dewangan, aged about 57 years, Director, Amrapali Grih Nirman Sanstha Simit, E/8, Pachpedi Naka, Raipur, Tahsil & District Raipur (CG). 6. Mukesh Mandhani, S/o Sundar Das Mandhani, aged about 43 years, Director, Amrapali Grih Nirman Sanstha Simit, A/7, Pachpedi Naka, Raipur, Tahsil SE District Raipur (CG). f\ PETITIONER/ NON-APPLICANT N0.10 PETITIONER/ NON-APPLICANT N0.11 PETITIONER/ NON-APPLICANT N0.12 PETITIONER/ NON-APPLICANT N0.13 RESPONDENTS y< RESPONDENT/ COMPLAINANT 7. Hari PSL- Prasad Sfd<w Sidar, about 5S years, Grih S/o aged Director, Nirman Amrapali Sanstha Simit, E/6, Pachpedi Naka, Raipur, Tahsil & District Raipur (CG). Chandrika Prasad Dewangan, S/o Tikam Ram Dewangan, aged abcut 48 years, Director, Amrapali Grih Nirman Sanstha Simit, B/15, Pachpedi Naka, Raipur, Tahsil & District Raipur (CG). 9. Hanuman Prasad Kedia, S/o Keshav Devji Kedia, aged about 76 years, Director, Anirapali Grih Nirman Sanstha Simit, Behind Fashion House, Gole Bazar, Raipur, Tahsil SE District Raipur (CG). ^ 10 Vikas Baidya, S/o Jethumal Baidya, aged about 37 years, Director, Amrapali Grih Nirman Sanstha Simit, B/2, Pachpedi Naka, Raipur, Tahsil SE District Raipur (CG). Versus lf State of Chhattisgarh, through Secretary, Departn-ient of -Cooperative, D.K.S. Bhawan, Mantralaya, Raipur (CG). ^ 2. Chhattisgarh Lok Ayog, ^Gandhi Chowk, Raipur (CG), through its Secretary. •*". 3. Secretary, Department Cooperative, D.K.S. Bhawan, Maritralaya, Raipur (CG). 4. Bhavin Jain, Amrapali Grih Nirman Sanstha Simit, Pach.pedi Naka, Raipur, 'Tahsil & District Raipur (CG). / 3. ?"^s:: WB!T£s"S^Ee&AST^^rr»» CONST!TUno^^°OFTHE ^ 'h^/i HIGH COURT OF CHHATTISGARH. BILASPUR S^_: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. PETITIONERS Writ Petition (C) No.2581/2009 Ramesh Tiwari 65 Ors. RESPONDENTS Versus State of C.G. 85 Ors. ORDER -ik POST ON /? JULY, 2011 Sd/- Manindra Mohan Slirivastava Judge •7 HIGH COURT OF CHHAmSGARH : BILASPUR S.B.: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA. J. < ,-- PETITIONERS Writ Petition (Cl No.2581/2009 Ramesh Tiwari 85 Ors. RESPONDENTS Versus State of C.G. 85 Ors. Petition under Article 226 of the Constitution of India Appearance: Shri Prateek Sharma, counsel for the petitioners. Shri V.V.S. Murthy, Dy. Advocate General for the State/respondents No. 1 8s 3. Shri Sumesh Bajaj, counsel for respondent No.4. OR D E R (Passed on {Cf .07.2011) 1. By this petition, fhe petitioners have prayed for quashing of order dated 17.3.2009 (Annexure P-1) passed by the Chhattisgarh Lok Aayog in Case No.21/06. 2. On certain complaints made against the working and activity of Amrapali Grih Nirman Sanstha Simit (hereinafter referred to as "the Society"}, Pachpedi Naka, Raipur and role played by the petitioners in their capacity as office bearer of the Society, a case was registered by Chhattisgarh Lok Aayog, bearing No.21/06. The Lok Aayog issued notices fo the petitioners; afforded them -2- ^' \ \. y opportunity of hearing, including personal hearing and then passed an order on 17.3.2009, recommending action to be taken against the petitioners on a finding that out of various charges/aUegations of misconduct/irregularities, some of the allegations are made out. Accordingly, the Lok Aayog recommended for taking disciplinary action against the petitioners and to submit a report to the Lok Aayog within a period of 3 months. 3. The petitioners in this petition have sought to assail the correctness and validity of the aforesaid recoramendation/report of the Lok Aayog. Learned counsel for the petitioners submitted that the Lok Aayog committed serious iUegality in rejecting the preliminary objection and holding that the petitioners are public servants as defined under Section 2 (i) (vii) (ee) of the Chhattisgarh Lok Aayog Adhiniyam, 2002 (hereinafter referred to as "the Act of 2002"). The finding recorded and contained in the recommendation, have also been assailed on the submission that the findings are perverse. According to the petitioners, the Board of Directors passed resolution on 8.1.2006 and on that basis the construction committee decided to utilize the funds of the Society by constructing cement concrete road and a notice inviting tender was issued in the newspaper dated 29.1.2006. The work was appreciated by the Directors and specially invited members and no compliant was found. Later on, General Body of the Society approved the construction work in its meeting dated 26.2.2006 ,-ff'*y:a!ase-. ^•/'^.,-, ''^k s/f'" "^ '°%. 1. ^-. "s n -3- v and there was no illegality or irregularity in issuing the work order to M/s. Sharda Construction, as it was duly approved in the meeting of Board of Directors as also by the General Body of the Society in its meeting. Further case is that the construction of guard room was undertaken on the request of raost of the members of the Society and the expenditure incurred for construction of gi-iard room was duly approved by the Board of Directors in its meeting as also by the General Body in its meeting. It is also the case of the petitioners that the Lok Aayog has not properly appreciated the statutory scheme contained in Section 44 of the Chhattisgarh Co-operative Societies Act, 1960 (hereafter referred to as "the Act of 196V) while recording adverse finding on the aUeged charges niade by the complainant against the petitioners. According to the petitioners, there were no specific terms and conditions laid down by the Registrar regarding utilization of funds nor is there any provision or bye-laws regarding utilization of funds. Therefore, the petitioners who were office bearer, were fully justified in utilizing the funds of the Society in a transparent manner. Learned counsel for the petitioners submitted that the report of the Lok Aayog, which has recommended the action to be taken against the petitioners is based on certain findings recorded without due appreciation of aforesaid relevant aspects with regard to the functioning of the Society and the statutory scheme under the Act of 1960 and bye-laws made thereunder. •'>?... ..- -4- 4. On the other hand, learned counsel for respondents 1 & 3/State supported the impugned order passed on 17.3.2009. According to leamed counsel for the State, the Lok Aayog has passed the order after giving proper opportunity of hearing to the petitioners. According to him, in view of the definition of word "Public Servant" as defined under Section 2 (i) (v) and Section 2 (i) (vii) (ee) of the Act of 2002, as also in view of provision contained under Section 87 of the Act 1960, the petitioners are public servants. It is submitted that the Lok Aayog has raade its recommendation on findings, which have been recorded after due appreciation of the material available before it and it can neither be said to be perverse nor contrary to material on record. 5. Learned counsel for respondent No.4, in its reply, has taken serious objection wifh regard to the very maintainability of the writ petition against the preUminary report/recommendation of the Lok Aayog. Learned counsel for respondent No.4 submitted that under the statutory scheme of the C.G. Lok Aayog Adhiniyam 2002, the Lok Aayog is empowered to inquire into complaints and hold a preliminary inquiry and if it is found that there is substance in the allegation, it is authorized under the law to make recommendations for taking appropriate action. He further submitted that in view of the provisions contained in Section 11 (1) of the Act of 2002, if the Lok Aayog is of the opinion that the complaint is established, it shall by a report in writing, -5- ^3^ communicate its findings and recommendations along with relevant documents and other evidence to the competent authority and the competent authority shall examine the report forwarded to it and intkaate to the Lok Aayog within three months of the date of receipt of the report, the action taken or proposed to be taken thereon. He submits that the statutory scheme of Section 11 of the Act of 2002 further provides that if Lok Aayog is satisfied with the action taken or proposed to be taken on its recommendations, it shall close fhe case under information to the complainant, the public servants and the competent authority, and if in any case, the Lok Aayog is of the opinion that the case so deserves, it may make a special report upon the case to the Govemor and also inform the cornplainant. Learned counsel for respondent No.4 submits that the petitioners have fUed this writ petition against the report made by the Lok Aayog, which is m fhe nature of recomraendations to the competent authority. In his submission, the writ petition is premature, because no action as contemplated under Section 11 (2) of the Act of 2002 has been taken against the petitioners. It is contended that unless a concrete action, accepting the recommendations of the Lok Aayog, is taken against the petitioners, the petition would be pre-mature and not maintainable. In support of his submissions, leamed counsel for respondent No.4 relies upon the order dated 29th March, 2010 (Annexure R- 4/2), passed by the Division Bench of this Court in -6- the case Lakshnian Chaturvedi Vs. Chhattisgarh Lok Ayog (Writ Appeal No.24/10). It is further submitted that otherwise also, the report of Lok Aayog is based on material available on record and it can neither be said to be perverse nor contrary to material which has been collected by Lok Aayog in its inquiry. Leamed counsel for respondent No.4 further contended that in the absence of there being any allegation of violation of principles of natural justice or mandatoiy provisions contained in the Act of 2002, while holding enquiry which culminated into irapugned order dated 17.3.2009 and in the absence of there being any perversity or error apparent on the face of record, in the garb of writ pedtion under Article 226 of the Constitution of India, the petitioners may not call upon this Court to act as an appellate authority to examine the correctness of the findings of fact recorded by the Lok Aayog. 6. I have considered the rival submissions raade by leamed counsel for the parties and perused the records. 7. What has been called in question in this writ petition is the recommendation dated 17.3.2009 (Annexure P-1) of the Lok Aayog. In its report, the Lok Aayog has examined the material which has been colleted during the coiirse of enquiry, after giving opportunity of hearing to the petitioners and finding some of the allegations of misconduct estabUshed in its report, aU that the Lok Aayog has done is fhat it has recommended to the competent ^-••"^ "''-?& /'^. "^ ffif r L...<'sfs\ t v^?'^^^'^--^ >? W^' S 2; -7- i ^; 9 authority to take disciplinary action against the petitioners and inform the Lok Aayog within a period of 3 months. 8. Section 11 (2) of the Act of 2002 requires the competent authority to examine the report forwarded to it by the Lok Aayog and intimate to the Lok Aayog within thee inonths of the date of receipt of the report, the action taken or proposed to be taken thereon. In order to submit that based on the report of the Lok Aayog, action ahs been taken against the petitioners by the competent authority, the petitioners placed on record a show cause notice dated 6.6.2009, by which the petitioners have been called upon to submit their reply in the Ught of the report submitted by Lok Aayog. The petitioners could not bring to the notice of this Coi.irt any concrete fuial order passed by the competent authority, which would show that the petitioners have been removed from their office in the Society or any action taken against them. The material which has been placed on record by the petitioners only shows that after receipt of report of the Lok Aayog, the competent authority has proceeded to issue a show cause notice to the petitioners. In the light of provision contained in Section 11 (2) of the Act of 2002, the competent authority is required to examine the report of Lok Aayog and intimate to Lok Aayog within three months of the date of receipt of the report, the action taken or proposed to be taken on the report. .•v.f,1'" •: -8- 9. In the case of Lakshinan Chaturvedi (supra), a Division Bench of this Court passed and order on 29th March, 2010, wherein, it has been held: 4.... However, we feel that during the course of enquiry before the Lok Ayog, the Court should not interfere or monitor the proceedings and if any opinion is made by the Lok Ayog and the Government accepts the same and further takes any action by which the petitioner feels aggrieved, it is always open for him to take recourse of law. Therefore, in such situation, approaching the Court by Eling a writ petition at an earlier stage would be a premature stage." o 10. In view of the aforesaid observations made by the Division Bench of fhis Court, leamed counsel for respondent No.4 is correct in submitting that this writ petition is pre-mature at this stage. 11. Learned coiuisel for the petitioners sought to question the very correctness of the order passed by the Division Bench, on the submission that the Division Bench has not considered in elaborate details fhe scheme of the act and it is merely an obiter dicta. Therefore, the observations, if any, made by the Division Bench are not binding of this Court and the issue requires consideration in the light of the scheme of the Act of 2002. He further submits that what is binding on this Court is ratio of law laid down and not merely observations made. In support of his submissions, learned counsel for the petitioners placed reliance on the judgments, in the cases of State of Orissa and Ors. Vs. -9- Md. Illiyas1, State of Orissa (In all the Appeals) Vs. Sudhansu Sekhar Misra and Ors.2 SE Unioa^flndia & Ors. Vs. Dhanwanti Devi & Ors.3. 12. The submission of leamed counsel for the petitioners that the observations made by the Division Bench are not binding on this Court, cannot be accepted. The observations raade by the Division Bench are very clear that if any opinion is made by the Lok Aayog and the Govt. accepts the same and further takes any action by which the petitioner feels aggrieved, it is always open for him to take recourse to law. From the material, which is available on record, all that can be said is that a show-cause-notice has been given to the petitioners in the light of the recommendations raade by the Lok Aayog and the matter is pending consideration before the competent authority. In case the competent authority finaUy concludes, after taking into consideration the reply to show-cause-notice that the misconduct is made out, by accepting the report of the Lok Aayog, the petitioners would be at liberty to take recourse to such remedy as may be available to them under the law. 13. This Court is bound by the aforesaid observations made by the Division Bench, as those observations, have been made by the Court pertaining to an enquiry by Lok Aayog under the Chhattisgarh Lok Aaayog Adhiniyam, 2002. Therefore, the i AIR 2006 SC 258 2 AIR 1968 SC 647 3 (1996) 6 SCC 44 -10- :^ preliminaty objection to the maintainability of the writ petition is sustained. The writ petition is therefore dismissed, however, reserving liberty to the petitioners to take recourse to the reniedy as may be available to them under the law, in the event final orders are passed against them by the competent aufhority by accepting the report of the Lok Aayog. Manindra Praveen ^anShri-stava Judge