1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2244/2010 (Bhiwapur Taluka Shetki Sahakari Kharedi Vikri Samiti Ltd. vs. Abdul Salam Abdul Hafiz Sheikh and another) ...................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ...................................................................................................................................................................... Mr. S.S.Ghate, Advocate, with Shri V.D.Raut, Advocate, for petitioner. Mr. D.V.Chauhan, Adv. for Respondent no.1 Mr.Mujumdar, AGP, for R-2. ... CORAM : R. K.DESHPANDE, J. DATED : 20th SEPTEMBER, 2010. This writ petition challenges the order dated 14.2.2010 passed in Appeal No. 1/01 by the Assistant Registrar, Cooperative Societies Umred Taluka, Umred. 2] The Assistant Registrar in exercise of his appellate powers conferred by Clause (9) of Service Rules of the Petitioner Society allowed the appeal filed by the respondent/employee challenging the order of dismissal from service passed on 11.1.2001. The order of dismissal has been set aside and the petitioners are directed to reinstate the respondent no.1/employee in service in his former post of Manager. 3] Shri Ghate, the learned counsel appearing 2 for the petitioner does not dispute that under Rule 9 of Service Rules framed by the petitioner society, an appeal has been provided before the Assistant Registrar against the order of punishment imposed by the petitioner society upon him. In fact, the question was raised and decided by this Court in earlier round of litigation in W.P. No. 2122/2001, decided on 7th December, 2009, and hence, it is not now open for the petitioner to raise the issue of jurisdiction of the Assistant Registrar to entertain and decide the appeal. 4] Shri Ghate, the learned counsel, next urged that assuming that Assistant Registrar has a power to entertain and decide the appeal in terms of Rule 9 of the Service Rules, still he has no power to direct reinstatement of the employee in service after setting aside the order of dismissal. Shri Ghate, the learned counsel could not point out that such a point was raised before the Assistant Registrar when he decided the appeal. He has pointed out that the point that the Assistant Registrar has no jurisdiction to grant relief of reinstatement has been raised in this petition. Since the point was admittedly not raised before the Assistant Registrar, it cannot be permitted to be raised for the first time in this writ petition. The question whether the Assistant Registrar has got jurisdiction to direct reinstatement in service involves various issues and unless such question is raised before the Assistant Registrar inviting him to record the finding in respect 3 thereof, the point cannot be permitted to be raised in this writ petition. 5] Shri Ghate, the learned counsel, next urged that the Assistant Registrar has failed to consider the question of alternate punishment to be imposed upon an employee. He submits that the Assistant Registrar should have considered the question of proportionality of punishment imposed and if the punishment of dismissal from service is found to be disproportionate, then the matter is required to be sent back to the management to decide which alternate punishment should be imposed upon him. The contention also cannot be accepted for the reason that the Assistant Registrar has recorded the findings on merits of the matter, holding that the charges having been proved, and the enquiry was also held in breach of the principles of natural justice. In view of these findings, the question of considering the alternate punishment does not at all arise. 6] Lastly Shri Ghate, the learned counsel, urged that if the Assistant Registrar was of the opinion that the enquiry was vitiated on account of breach of principles of natural justice, then it should have granted permission to the management to lead evidence to establish the charges. This Court while remanding the matter back to the Assistant Registrar by judgment and order dated 7th December, 2009, delivered in Writ 4 Petition No. 2122/2009, has directed the Assistant Registrar to decide the appeal on merits after considering the evidence on record. The Assistant Registrar has accordingly considered the findings recorded by the Enquiry Committee on merits of the charges. Apart from the finding that the enquiry was conducted in breach of the principles of natural justice, a finding is also recorded that the enquiry was conducted with prejudiced mind, without verifying the record. The Assistant Registrar has also considered the statement of witnesses examined by the management and the evidence has been discarded. The finding is recorded that the action on the part of the Society in dismissing him from service was not legal and proper. Such a finding of fact cannot, therefore, be interfered with, more particularly when there is no perversity in recording such finding, brought to the notice of this Court. In the result, the petition is dismissed. No costs. JUDGE Rvjalit