1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2277 OF 2002 Chief Executive Officer, Jalgaon District Supervision Co-operative Society Limited, Jalgaon Unity Chamber, Ganesh Colony, Khaja Miya Road, Near J.D.C.C. Bank, Branch Ganesh Colony Jalgaon, District Jalgaon ...Petitioner Versus Ramkrushna s/o Dalpat More Age 45 years, Occ. Ex-Secretary, R/o. Varsale, Post Maheji, Tq. Pachora, District Jalgaon ...Respondent ..... Mr. P.R. Patil, advocate for the petitioner None for the respondent. ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 29.08.2009 OF JUDGMENT DATE OF PRONOUCNEMENT : 07.09.2009 OF JUDGMENT JUDGMENT:- 1 This writ petition is filed challenging the judgment and order 2 dated 21.12.1999 passed by the Divisional Joint Registrar, Co- operative Societies, Nashik Division, Nashik in appeal No. 3 of 1998. Background facts of the case are as under:- 2 The petitioner herein is a District Supervision Co-operative Society Limited registered under the Maharashtra Co-operative Societies Act, 1960. The respondent No.2 is ex-employee of the petitioner society. The respondent was employee as a Secretary and he was working at Vangaon, Vividh Karyakari Sahakari Society Limited, Tq. Edlabad. It is the case of the petitioner that during the tenure of the Secretary, the respondent had committed several acts of misappropriation and also there was dereliction of duties, therefore, departmental enquiry was held against the respondent by appointing enquiry Officer. The Inquiry Officer by his report dated 10.11.1991 held the respondent guilty of following charges;- 1 Submitting fraudulent certificates signed by the Chairman 2 Submitting explanation at a late stage 3 Not providing record for the audit 4 Dereliction of duties. 5 Not reporting on duties 6 Not handing over the charge and records 3 7 Mis-appropriation of Rs.5,000/- 8 Mis-appropriation of Rs.2,000/- 9 Mis-appropriation of Rs.1,000/- 10 Not handing over the charge fully 11 Using fraudulent receipt books After receipt of report, the Inquiry Officer by order dated 8.5.1998 services of the respondent were terminated by the petitioner society. The petitioner herein filed appeal No. 3 of 1998 before the Divisional Joint Registrar, Co-operative Societies, Nashik. Subsequently the audit of the said society has taken place and it was noticed that the petitioner had misappropriated an amount of Rs.1,80,898/-. The respondent is also facing criminal prosecution for misappropriation before the learned J.M.F.C. Pachora. The Divisional Joint Registrar, Co-operative Societies, Nashik allowed the appeal filed by the respondent by order dated 8.5.1998. Hence, this writ petition. 3 Learned counsel appearing for the petitioner submitted that the charges which were levelled against the respondent were very serious in nature. The findings of the enquiry Officer are based upon the documentary and oral evidence. The respondent was guilty of 4 misappropriation and in these circumstances, keeping him in service was prejudicial to the interest of the society. The respondent employee had to deal with ill literate farmers in his capacity as Secretary of multi purpose Co-operative Society. In view of this the punishment of termination was appropriate. It is further submitted that the Divisional Joint Registrar had no jurisdiction to interfere with the findings of the fact to consider the adequacy of evidence, the Divisional Joint Registrar had also no jurisdiction to interfere with the punishment which was proportionate to the charges proved. The learned counsel further submitted that the order passed in appeal by the Divisional Joint Registrar is without taking into consideration the additional charges as framed against the respondent, therefore, counsel for the petitioner would submit that the view taken by the appellate authority cannot be said to be reasonable view since entire material was not taken into consideration while allowing the appeal filed by the respondent. Learned counsel further submitted that even the charge Nos. 1 to 6 were very serious in nature. Learned counsel submitted that there was specific charge of misappropriation of the amount, however, the appellate authority in stead of going in to the details, has superficially concluded that the respondent was not guilty of those charges. Learned counsel further submitted that when there are serious charges of the misappropriation the appellate authority should have passed necessary orders in appeal only after taking into consideration all charges including the additional charges and also 5 enquiry report. Learned counsel further submitted that the charge No.5 is also very serious in nature though the receipts are issued from book 2518, the same entires are not taken in the register. Therefore, learned counsel would submit that the appellate authority was not justified in allowing the appeal that too on the backdrop of serious charges like misappropriation of the amount. Learned counsel in support of his contention has placed reliance on the reported judgment of the Hon’ble Supreme Court in the case of T.N.C.S. Corporation Limited and others Vs. K. Meerabai reported in (2006) 2 SCC 255. On the basis of the said pronouncement by the Apex Court, the learned counsel would submit that when the respondent who was found guilty of misappropriation and other serious charges in the departmental enquiry, should have been appreciated by the appellate authority while hearing the appeal. The appellate authority did not appreciate that the punishment of dismissal of respondent from service was imposed is proper punishment in the peculiar facts and circumstances of the case, based on independent appreciation of evidence on record as well as the categorical findings recorded by the enquiry Officer in accordance with the requirement of the Rules, therefore, learned counsel would submit that the view taken by the appellate authority is unreasonable and findings recorded are perverse. Therefore, the this writ petition deserves to be allowed. 4 From the record, it appears that though the respondent is duly 6 served, and advocate has entered appearance on his behalf, no reply is filed in the writ petition. This matter was taken up for final hearing on 28.8.2009, since none appeared for the respondent, matter remained part heard and again it was taken on 29.8.2009. Even on that day also, none appeared for the respondent. Therefore, in absence of any reply or any documents placed on record on behalf of the respondent, the pleading in the petition went uncontroverted. 5 In writ jurisdiction it is not possible for this court to reappreciate the evidence. However, I find considerable substance in the arguments advanced by the counsel for the petitioner that the appellate authority has not taken into consideration the additional charges which were framed and reply by the respondent herein. On perusal of annexures to the petition it clearly appears that additional charges were framed and the respondent has also given reply to the said charges. In serious cases like in hand, the appellate authority should have careful while allowing the appeal. On the perusal of the reasons recorded by the appellate authority it clearly appears that the findings are cryptic and really do not substantiate the final order of allowing the appeal. Even if the charge Nos. 1 to 6 are perused they are serious in nature. Though the receipts are issued, the book from which the receipts are issued is not available in the office and no entries of those receipts have been taken in the register and therefore, the appellate authority should have done detailed and exhaustive 7 exercise to appreciate the contention of the petitioners herein. The additional charges which were framed are also of very serious in nature including the misappropriation of the amount by the respondent. In a serious case like the charges of misappropriation excluding and not adverting to the additional charges framed against the respondent and allowing the appeal by cryptic reasoning is led to unreasonable view taken by the appellate authority. The order passed by the appellate authority does not appeal to the consciousness and the order is unreasonable. However, as already stated herein above, it is not possible for this Court in writ jurisdiction to reappreciate the evidence. There is no option but to remand this matter back to the appellate authority for fresh consideration in the light of the additional charges and other material on which the petitioner wishes to rely upon to substantiate its contention and the pronouncements by this Court as well as the Hon’ble Apex Court like in case of T.N.C.S. Corporation and others Vs. K. Meerabai (supra). 6. It would not be out of place to refer to the observations of the Hon’ble Apex Court in the case of T.N.C.S. Corporation and others Vs. K. Meerabai (supra) in para 29, which is reproduced as under:- “ The plea of the respondent for taking a lenient view has no force. The scope of judicial review is very limited. 8 Sympathy or generosity as a factor is impermissible. Loss of confidence is the primary factor and not the amount of money misappropriated. In the instant case, the respondent employee was found guilty of misappropriating the Corporation funds. There was nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment awarded by the disciplinary and Appellate Authority”. 7 Taking over all view of the matter, the impugned judgment and order passed by the appellate authority is not sustainable, same is quashed and set aside. The matter is remanded back to the appellate authority for fresh consideration and hearing. The appellate authority i.e. the Divisional Joint Registrar, Co-operative Societies, Nashik to hear the parties afresh and pass appropriate orders within six months from today. Rule made absolute in terms of prayer clause “C”. Writ petition is disposed. 8 Civil application, if any pending in this writ petition, shall stand disposed of. (S.S. SHINDE, J). rlj/ 9