*1* wp.4064.02 kps I N THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4064/2002 Solapur Nagri Ayudyogik Sahakari Bank Limited, Solapur, a Co-operative Society, duly registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 having its registered office at 340-A, Sakhar Peth, Solapur. ..Petitioner -Versus- 1 The State of Maharashtra. Through its Secretary to the Ministry of Co-operation, Mantralaya, Mumbai. 2 The District Deputy Registrar, Co-operative Societies, Solapur. 3 The Commissioner for Co-operation and Registrar of Co-operative Societies, Maharashtra State, Pune. 4 Bahujan Employees Federation Co-operative Banking Sector, Solapur Branch, Unit No.61, New MHADA, Dhule, Solapur-413004. ..Respondents .... Mr.G.S. Godbole for the Petitioner. Mr.C.R. Sonawane, AGP for the Respondents/ State. .... *2* wp.4064.02 CORAM: P.B.MAJMUDAR & R.M.SAVANT, JJ Date : 19th July, 2010. JUDGMENT (Per R.M. Savant, J): 1 By way of this petition filed under Article 226 of the Constitution of India, the Petitioner which is a Urban Co-operative Bank takes exception to the order dated 17.07.2002 issued by the Respondent No.2/ District Deputy Registrar, Co-operative Societies, Solapur, by which order, he directed the Petitioner/ Bank to employ the temporary employees belonging to the Backward Class on the same basis as permanent employees of the Petitioner Bank. The Petitioner has also sought a declaration that the Respondents No.1 & 2 have absolutely no authority and jurisdiction to insist that the Petitioner must employ the persons belonging to the Backward Class according to the percentage of reservation as provided in the Government employment. 2 The factual matrix, in brief, can be stated thus:- The Petitioner is an Urban Co-operative Bank having various branches in Solapur district. It is the case of the Petitioner that it has not received any contribution to its share capital from the Government of Maharashtra nor does the Petitioner gets any aid from the Government. It appears that some time in the year 1977 i.e. on 25.09.1977 the Respondent No.1/ State issued an order purportedly under Section 79(A)(i) of the Maharashtra Co-operative Societies Act, 1960 (hereinafter to be referred to as the said Act for sake of brevity), thereby, directing the Co-operative Societies having *3* wp.4064.02 more than 10 employees to follow the reservation policy of the Government. Thereafter, by way of clarification issued on 24.10.1979, it was clarified that the condition of reservation was mainly for the co-operative societies which are getting financial aid from the Government. By the circular dated 25.09.1981, the District Central Co-operative Banks were directed to fill up the backlog of the Backward Class employees. The Respondent No.1 issued another circular dated 08.08.1989 directing that 44% reservation in direct recruitment and 24% reservation in promotion should be followed by observing 100 point roster. It appears that in pursuance of the directives issued by the State Government from time to time, the Petitioner recruited 31 persons from the reserved category. Contemporaneously the Petitioner also recruited 46 persons from the general category. The Petitioner has, thus, recruited 77 persons who were initially appointed as apprentices and thereafter, on probation and were being paid consolidated salary. 3 It is the case of the Petitioner that a meeting was held on 23.05.2001 which was presided over by the Respondent No.2 in which meeting the office bearers of the Petitioner and the representatives of the Respondent No.4 herein were present. It is the case of the Petitioner that under the threat of action under Section 78 of the said Act coupled with the threat of prosecution under the Atrocities Act the then office bearers of the Petitioner were made to sign a document styled as “Roznama” to the effect that all Backward Class employees would be made permanent in service w.e.f. 01.10.2001. On the same day, the Respondent No.2 passed an order *4* wp.4064.02 purportedly under Section 79 of the said Act, thereby, directing the Petitioner to make Backward Class employees permanent. The Petitioner filed a Revision Application being No.199/2001 challenging the said direction as contained in the order dated 23.05.2001. In the interregnum, the Petitioner has given hike of Rs. 500/- per month to the Backward Class employees which resulted in filing of Complaint ULP No.86/2001 by the recognized Union in the Industrial Court, Solapur. On the interim application moved in the said complaint, the Industrial Court directed the Petitioner to give the same salary hike, which was given to the employees belonging to the Backward Class, to the open category employees. Thereafter, the Revision Application filed by the Petitioner against the order dated 23.05.2001 was allowed by the Revisional Authority. It appears that some correspondence thereafter ensued between the Petitioner and the Respondents No.2 to 4 as consequence of which the Respondent No.2 by order dated 16.01.2002 directed the Petitioner to pay salary to the newly recruited Backward Class employees at the rate equal to the rate applicable to old permanent employees. The Petitioner, thereafter, made representation to the Respondent No.3, however, the same was turned down and the Respondent No.3 directed the Petitioner that newly recruited Backward Class employees should be paid the salary equal to the old permanent employees. Thereafter, some correspondence ensued which ultimately resulted in the Respondent No.2 passing the order dated 17.07.2002 which is impugned in the present petition. Reading of the said order discloses that the said order has been passed purportedly under Section 79(2) *5* wp.4064.02 of the said Act. 4 We have heard the learned counsel appearing for the parties and have perused the papers of the present proceedings. Since the Respondent No.2 has relied upon Section 79(2) of the said Act for issuing the directions as contained in the impugned order dated 17.07.2002, it would be apposite to refer to the said provision which reads thus:- “79(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 assets and liabilities of the society, and to furnish such statements and returns and to produce such records as he may require 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 action is not take- (a) within the time provided in this Act, the rules or the bye-laws, or the order, as the case may, 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 authorised by him, take such action at the expense of the society; and such expense shall be recoverable from the *6* wp.4064.02 society as if it were an arrear 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 expense paid or payable by it to the State Government as a result of their failure to take action, and to pay to the assets 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.” 5 Reading of the said provision ex-facie discloses that the directions can be issued by the Registrar to any society or class of societies to keep proper books of accounts with respect to (a) all grants of money received and expended, (b) all sales and purchases of goods by the society, (c) its assets and liabilities and obliges the society to furnish such statements and returns and to produce the record, as may be required from time to time. Section 79 precisely deal with issuance of directions in regard to maintenance of books of accounts, money received and expended by the society, sale and purchase of goods, its assets and liabilities and furnishing all the statements and returns called by the authorities. The said provision, therefore, invests the Registrar with the powers to enforce performance of obligations. Sub-section (2) postulates a situation, *7* wp.4064.02 wherein, the society is required to take any action under the Act, Rules or the Bye Laws and if such action is not taken within the time prescribed, the Registrar is empowered to take such action at the expense of the society and sub-section (3) provides for taking an action against the officer or officers of the society who are responsible for non-compliance. 6 In the instant case, it is required to be noted that an agreement was purportedly arrived at between the Petitioner and the Respondent No.4 for giving certain benefits to the Backward Class candidates. It is in furtherance of implementation of such an agreement the said directions seem to have been issued by the Respondent No.2 as contained in the order dated 17.07.2002. The directions as mentioned herein above to the effect that newly appointed Backward Class employees are to be paid on the same basis as permanent employees of the Bank, the said subject, therefore, cannot be ascribable to Section 79(1) of the said Act much less sub-section (2) where the Registrar can take action against the society for not carrying out the directions issued under sub-section (1). If the purported agreement is not being implemented by the Petitioner/ Society the concerned employees could have recourse to law by filing appropriate proceedings before the appropriate forum in that behalf. But that would not confer power on the Respondent No.2 to issue directions as contained in the impugned order dated 17.07.2002. The directions in the order do not come within mischief of Section 79 or matters which can be dealt with under the said provision. We, therefore, have no hesitation in holding that the said *8* wp.4064.02 directions as contained in the impugned order are ultra-vires the provisions of Section 79 and therefore, are not sustainable. We, therefore, set aside the impugned order dated 17.07.2002 on the said ground. 7 Insofar as the second relief sought by the Petitioner is concerned namely the direction that the Respondents No.1 & 2 have no authority and jurisdiction to insist that the Petitioner must employ the persons belonging to the Backward Class according to the percentage of reservation as provided in the Government employment; we make it clear that we have not gone into the said aspect of the matter and in the event the Petitioner seeks to agitate the same in future proceedings, disposal of the present petition would not come in it’s way. 8 Another fact requires to be noted is that during the pendency of the petition, a new Act namely The Maharashtra State Public Services (Reservation for Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act, 2001 has come into force. Though it is the contention of the learned counsel for the Petitioner that the direction if any as regards to the employment of the Backward Class candidates would now lie only within the ambit of the said Act of 2001, however, it is the contention of the learned counsel for the Petitioner that the Petitioner is also not covered by the said Act of 2001. We are not called upon to decide the said question of the applicability of the said Act to the Petitioner and therefore, do not express any opinion *9* wp.4064.02 in that regard. The Petitioner would be free to agitate the said contention at an appropriate time and in appropriate proceedings. 9 For the reasons mentioned in the earlier part of this order, we set aside the impugned order dated 17.07.2002 passed by the Respondent No.2 . Rule is, therefore, made absolute to the aforesaid extent. Parties to bear their own costs. (R.M. SAVANT, J) (P.B. MAJMUDAR, J)