w w w . L a w y e r S e r v i c e s . i n



KISSAN GINNING AND PRESSING CO-OPERATIVE SOCIETY LTD. VERSUS RAMESHWAR S/o NARAYANRAO TARAL


Company & Directors' Information:- TARAL CORPORATION PRIVATE LIMITED [Active] CIN = U51109GJ2011PTC067764

Company & Directors' Information:- S S GINNING AND PRESSING PRIVATE LIMITED [Active] CIN = U18101MH1998PTC115628

Company & Directors' Information:- V. T GINNING AND PRESSING PVT. LTD [Strike Off] CIN = U01405GJ2006FLC048936

    Appeal 6 Of 1991

    Decided On, 30 March 1991

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE A.H. PATIL

    For the Appearing Parties: Pradeep Mahalle, S.Z. Patel, Advocates.



Judgment Text

A.H. PATIL, J.


( 1 ) ON the stay application in this Appeal for status-quo until final hearing of the Appeal was ordered and parties were directed to produce certain documents. The Appellant produced these documents and the Appeal was finally heard.


( 2 ) THE Appeal is directed against the Order passed by the Judge, co operative Court, Amravati, on 9-1-1991 in dispute No. 1/91 under which the application for Interim Injunction was allowed and Ad-Interim-Injunction previously granted was confirmed. The said order has an effect of restraining the Non-Applicant i e. Appellant herein from taking any action including termination of the services of the Disputant the Respondent herein on the basis of the private enquiry report as suggested by show cause notice dated 25-12-1990.


( 3 ) IN the original dispute the disputant has prayed for declaration that the resolution No. 12 (1) of the meeting dated 21-6-1990 thereby appointing the enquiry officer is alleged and that the enquiry conducted and completed against the disputant is illegal and irregular. It is also prayed, inter-alia, to restrain the opponent i. e. Appellant herein permanently from taking action upon enquiry report submitted by Private Enquiry Officer on 19-11-1990. To comprehend, the brief facts in the dispute may be stated as under :


( 4 ) THE disputant being Manager of the Opponent society is an "officer" as contemplated under Section 2 (20) of the M. C. S. Act, 1960, (hereinafter referred as "act") and so he is outside the purview of any enquiry other than what is contemplated under Sections 83 to 88 of the Act. He has alleged that the Managing Committee of the Opponent society is bent upon either to dismiss or to terminate him on the strength of the alleged private enquiry, for which purpose he has cited certain instances of vengeance. He has been put under suspension from 1-4-1990 by a resolution. Enquiry officer was appointed by name Mr. Hameed. However, on his objection the appointment of the particular person as an enquiry officer, another person Mr. Kale, Advocate, was appointed as an Enquiry Officer who conducted the enquiry. Although, he had an apprehension of bias and partial enquiry he could not raise another objection with a view to avoid blame of in subordination and he co-operated the enquiry officer in conduct of the alleged enquiry. It was not completed within 6 months. According to the disputant he being the Officer as defind under Section 2 (20) of the Act, the enquiry contemplated under Sections 83 to 88 should have been ordered and conducted by the Registrar or through the person appointed by him. Since the Registrar alone has a power to conduct the Departmental Enquiry against the disputant being the officer of the society. It is alleged that no such enquiry was conducted by the Registrar or through his duly authorised person against the disputant but it was conducted by Mr. V. V. Kale, advocate, who is a Private person, such an enquiry is in-contravention of the act and Rules. It is pleaded that on the basis of such alleged enquiry report he should not be terminated from the service. The learned Lower court accepting these contentions of the disputant passed the order of confirmation of previous Ad-Interim-Injunction. The other side i. e. Appellant society has filed its exhaustive written statement raising denials and submitted that it is well within the powers of the Managing Committee to put an employee under suspension under the provisions of the bye-laws and the Service Rules. Particularly the Rule No. 16 which is applicable to all the employees including the disputant Manager, Reference to Sections 83 to 88 of the Act is stated to be uncalled for in as much as the scope of those sections is altogether different and the enquiry contemplated under those sections is different than that made in the impugned matter. The contention of the disputant as regards the enquiry officer, his appointment, conduct of enquiry, conclusions drawn by the Enquiry Officer are specifically denied. It is submitted that the word "sewak" includes all the employees including the manager. There is no provision under the Act and Rules and Bye-laws and in Service Rules to complete the enquiry within a period of 6 months. Bye-law No. 12 (2) (5) empowers the Managing Committee to put any employee under suspension and bye-law No. 15 demonstrates that the manager is absolutely under the disciplinary control of the Board of Directors and so there is no substance in contending that an enquiry against the manager could be made only by the Registrar Under Sections 83 to 88 of the act. In fact, Assistant Registrar has approved the conduct and disciplinary rules. They have come into force from 10-8-88 and there from all the employees including the manager are categorised as "sewak". Under Rules 15 and 16 of the Service Rules; the Managing Committee is empowered to take disciplinery action against the delinquent employee including removal of such an employee from service so the enquiry ordered and held is legal and proper. It is also contended that such a dispute as contemplated under section 2 (k) of the Industrial Dispute Act, 1947, could not be entertained because of the existence of proviso of Section 91 of the Act in that behalf. Inspite of these facts the lower court had confirmed the Ad-Interim-Order which led the Appellant society to come in Appeal. The grounds in Appeal are that the lower court committed a mistake of fact and law in entertaining the dispute which is prima facie [premature and without there being any cause in favour of the Respondent/disputant. The legal rights of the appellant are being encroached upon because of the restraints imposed by the order impugned. Departmental enquiry in respect of the charges levelled against the respondent/disputant was conducted by the enquiry officer Mr. Kale who is an Advocate. During this enquiry full opportunities were made available to the delinquent respondent to adduce evidence and extend arguments. Only after that, the enquiry officer submitted his enquiry report and the Board of Directors in their meeting held on 15-12-1990 after deliberation resolved authorising the President to issue show cause notice to the respondent calling upon him as to why the action of removal should not be taken in view of the charges which are proved against him. It was merely a show cause notice. However, the learned Lower Court prejudiced the removal of the Respondent relying on pleas raised by him in his dispute. The enquiry as was instituted was within the provisions of Rule 16 of conduct and Discipline Rules. The enquiry which contemplated under sections 83 to 88 read with Rule 72 is not contemplated for taking disciplinary action against an employee for the purposes of terminating him from the services. So, the learned Judge erred on the point of law also. It is also contended that the test of irreparable injury was not applied properly by the learned Judge.


( 5 ) MR. S. Z. Patil, Advocate represented the Appellant and Mr. Pradeep Mahalle, Advocate represented the Respondent. Both the learned Counsels were heard at length.


( 6 ) MR. S. Z. Patil, Advocate, contended that the Respondent is in service of the society for a considerable long period and it relevant time he was working as Manager. The Board of Directors in their meeting held on 9-1-1990 adopted a resolution to suspend him and it was followed with an enquiry, in turn it was followed by show cause notice dated 25-12-1990. Referring to the prayer clauses of the dispute he contended that the respondent has challenged the appointment of enquiry officer as illegal following with further declaration that the enquiry was merely a farce being illegal and irregular and has sought permanent restrainment as against the appellant society for acting upon the enquiry report which is submitted by the enquiry officer on 19-11-1990. Mr. Patil, Advocate, further contended that the Respondent bad prayed for Interim relief to restrain the Appellant from taking any action as suggested by the show cause notice dated 25-12-1990, including the action of the termination of services on the basis of the enquiry report. He has also prayed for the payment of full salary and wages etc. In fact, the show cause notice was replied by the Manager. The disputant/respondent has pleaded political animosity against the chairman and whole of the Managing Committee but did not give any reason nor any ground. Malafides are alleged but they are far from credence. He is in a coveted position to which he himself is arrogating. Referring to section 2 (20), he contended that the definition of officer is inclusive definition in which Manager befits. According to him Sections 83 to 88 provide for certain powers and they are in the nature of curative powers with the registrar. Those provisions cannot be equated with the provisions related disciplinary action as would arise from the conduct of the Manager who no doubt is an "officer". Both the enquiries are distinct and different. Even proviso to Section 91 of the Act excludes the dispute as contemplated under section 2 (k) of the Industrial Dispute Act in such a case as the present one. The lower court does not have jurisdiction to try it. Bye-law No. 15 provides for the appointment of the Manager by the Managing Committee. It further provides that such a Manager would work under the entire control of the Managing Committee. Referring to Section 16 of the General Clauses act, he contended that the appointing Authority being the Managing committee would have the powers to terminate the services of appointee. Discipline and Conduct Rules have been already approved by the Registrar and have come in force from 10-8-1988. These Rules speak about the classes of "sewak". The disputant has suppressed the position arising out of these service Rules. Rule 17 of these Rules has a controlling feature of the Service Conditions Service Rule 23 has in it, a built in mechanism. The disciplinary enquiry as was instituted was the out-come of the conduct demonstrate by the disputant and was within the ambit of these service rules. The disputant has filed the dispute in the form of anticipatory action, anticipating that he is likely to be dismissed and the learned Judge has accepted his contentions. He has also canvassed referring to Section 14 of the Specific Relief Act and some of the Authorities on the point of Interim injunction contending that if the term is anticipated the suit is not tenable. The employee cannot be thrust upon the unwilling employer. Where the relief of permanent nature could not be granted that of temporary nature also cannot be. According to Mr. Patil, Advocate, Service conditions are not the subject matter of Section 91. He urges, in view of the facts demonstrated by him and the various authorities referred, to allow the appeal. While producing the Documents Advocate Yeole assisting Advocate Patil, has contended mostly on the lines what Advocate Patil had canvassed. However, advocate Yeole vehemently says that the Departmental Enquiry which was conducted by Shri Kale, Advocate was properly conducted and the guilt in some of the charges levelled against Respondent is established. The Respondent had actively taken part in Enquiry and was given sufficient opportunities in the interest of justice. There being no merits in the case of the Disputant the Order of the Trial Court be quashed. He has moved me through the contents of the documents placed on record.


( 7 ) MR, Pradeep Mahalle, Advocate, Appearing for the Respondent contended very vehemently that the Respondent is the Manager and therefore as contemplated under Section 2 (20) of the Act, he is an Officer of the Appellant Society. The Officer of the Manager i. e. the Officer is created by the bye-laws and not by the Managing Committee. According to him, when the Respondent is the Officer of the society any Enquiry as against him shall be the enquiry as contemplated under Sections 83 to 88 of the Act. He has referred to these sections and very lucidly contended that the scope of Section 88 of the Act is comprehensive enough to bring such an enquiry against the Respondent and for this he referred to the charges 1 to 14 under the impugned enquiry. Further according to Mr. Mahalle, advocate, the Appellant contend in the Appeal memo that it being the about case of sheer misconduct like disobedience, in-sub-ordination or say criminal assault etc. and not being the case of misapplication, retention, misfeasance, criminal breach of trust the provisions of Section 88 are not attracted. If so, then there should have been the charges regarding conduct of Respondent. But it is not so. If it was not so, then why not the appellant society ordered enquiry under Section 88 of the Act. He has elaborately stated and tried to show that the charges as have been framed could have been the subject matter of the enquiry. He assailed that the findings of the enquiry officer is based on extraneous reasoning and surprisingly enough, the enquiry officer has not believed through evidence as gone against the proof of charges. Further referring to the provisions of Industrial Dispute Act, particularly Section 2 (k) of the Act read with 2 (s) (iii) he contended that these provisions exclude the respondent from the mischief of the proviso clause of Section 91 of the Act, and that the dispute of the Respondent is based on legal provisions vis-?is the enquiry which is under challenge. He has further attempted to point out the provisions of Service discipline and conduct Rules as approved by the Assistant' Registrar, C. S. Particularly referring to Rule No. 16 he contended that under the said rule the enquiry relating to conduct and working of the "sewak" has to be co inducted by a committee appointed by the Board of Directors. So, it is not the enquiry in respect of malfeasance, misfeasance and breach of trust as is contemplated under Section 88 of the Act and which could be ordered against the officer i. e. the Respondent herein. Referring to the words used as in some of the Rules e. g. 12 and 113 and in Rules 15,17, 18, 20, he tried to distinguish that the "manager" is different from the "sewak" and that he is not at all a "sewak" but the "officer". Therefore, the Respondent could not be bound by the provisions of Rule 16 of the Service, Discipline and conduct Rules is Referring to the prayer clauses of the dispute and urged that the order of the trial court is correct and the Appeal be dismissed.


( 8 ) UNDISPUTED position is that the Respondent is the Manager of the appellant society for a considerable period and he falls under the definition of "officer" under Section 2 (20) of the Act. He had been put under suspension from 1-4-1990 pursuant to the decision taken by the Managing committee of the Appellant society vide its resolution No. 5 in the meeting dated 1-4-1990. The enquiry was instituted. Mr. Hamid, Advocate was appointed as enquiry officer subsequently the enquiry officer was changed and Mr. Kale, Advocate, was appointed in his place to conduct the enquiry. The Respondent had participated in the conduct of this enquiry. It was not completed within a period of 6 months. The Service, Discipline and conduct rules for the employees have been framed by the Appellant society and they are approved by the Assistant Registrar, C. S. Anjangaon Surji, vide its No. 948/88, dated 10-6-1988.


( 9 ) THE first point that emerges for discussion is whether the respondent Manager falls under the nomenclature "sewak" to whom the service discipline and conduct rules of the Appellant Society are made applicable. Mr. Pradeep Mahalle, Advocate, has very vehemently contended that he is not "sewak" but is an "officer" of the Appellant society, and therefore the enquiry as contemplated under those rules can not be instituted against him and the only enquiry as contemplated under Sections 83 to 88 of the Act could be ordered against him. While Mr. Patil, 'advocate refuting these contentions, has submitted that the enquiry under the Service discipline and conduct Rules is an enquiry into the conduct, behavious, working etc. while the enquiry under Section 88 is for the purpose of assessment of damages and it does not cover the discipline and conduct of the employee.


( 10 ) WITH a view to appreciate the rival contentions, it is necessary to refer to the relevant provisions of Service discipline and conduct Rules and those of the Act. Section 83 (1) : the Registrar may of his own motion, and shall on the application of one-third of the members of a society himself or by a person duly authorised by him in writing in this behalf, hold an inquiry into the constitution, working and financial conditions of a society. (2):. . . . . . . . . . . .- (3) (a): All officers, members and past members of the society in respect of which an enquiry is held, and any other person. . . . . . . . . (Rest of the provisions are irrelevant for our purpose)section 84 (1) : On the application of a creditor a society who. . . . . . . . the registrar may, if he thinks it necessary, inspect or direct some person authorised by him by order in writing in this behalf to inspect books of the society. (Rest of the provisions are not relevant for our purpose)section 88 (1) : Where, in the course of or as a result of an audit under section 81 or an enquiry under Section 83 or an inspection under Section 84 or the winding up of a society, the registrar is satisfied on the basis of the report made by the auditor or the person authorised to make enquiry under section 83 or the person authorised to inspect the books under Section 84 or the Liquidator under Section 105 or otherwise that any person who has taken any part in the organisation or management of the society or any deceased, or past or present officer of the society has, within a period of five years prior to the date of commencement of such audit or date of order for enquiry inspection or winding up, misapplied, or retained, or become liable or accountable for, any money or property of the society, or has been guilty of misfeasance or breach of trust in relation to the society, the Registrar or a person authorised by him in that behalf may frame charges against such person or persons. . . . . . . . make an order requiring him to repay or restore the money or property or any part thereof, with interest to. . . . . . . . . or to contribute such sum to the assets of the society by way of compensation in regard to the misapplication retention, misfeasance or breach of trust, as he may determine. (Rest of the provisions are not relevant for our purpose ).


( 11 ) AT the outset, if may be mentioned that the Respondent Manager was in office as Manager while at the time of framing the service Discipline and Conduct Rules and getting approval from Registrar and also on the date of their application. As the caption demonstrates these Rules bring within their ambit various categories of the employees amongst whom the manager is one. Conjunctive reading of Rule 1 and Rule 4 unambiguously makes clear that the word "sewak" covers all the categories of the employees mentioned in both these Rules. The word cannot be read in isolation and disjunctively from the other designations of the employees. Notwithstanding the fact that there are different categories of the employees dependant on the pay scales, academic qualification, etc. all of them fall and are covered by class as a whole named as "sewak" they are distinct and separate from each other on the basis of categories dependent on nature of duties, academic qualification, pay scales etc. , but they are insperable from the class as a whole named as "sewak" and this it what is contemplated in Rule 1 and Rule 4. So the term "sewak" includes all the categories mentioned in these Rules. At certain places, as pointed out by Mr. Mahalle, Advocate, the word is used bracketing the intention the term This itself, in fact, implies that the is one of the "sewak" specifically named as in my candid view, there can be no gain-saying that the Manager is not "sewak". The contention raised by Mr. Pradeep Mahalle, Advocate, in this behalf appears to be incongruous. These Rules are binding on all the employees of the Appellant society irrespective of their categories. Naturally so, Rule 16 would cover the action as contemplated therein against the manager also. This Rule in intended to take an action departmentally and disciplinary if the "sewak" is found to be lethargic, negligent. mis-conduct, mis-management etc. The Rule provides that the powers to enquire into the conduct of the "sewak", can be given by a resolution of the committees. Now, switching to the provisions of Sections 83 to 8s of the Act, it may be stated that Section 83 is intended towards the inquiry by the Registrar into the constitution, working and financial conditions of the society such an inquiry can be instituted by the Registrar of his own motion and also on the application of certain number of members of the society as mentioned in the said section. It is made obligatory on the part of all the officers, members and past members of the society in respect of which an enquiry is held and any other person in possession of information, books, papers etc. to furnish such information and produce all such books and papers and give all assistance in connection with the inquiry to the person holding inquiry. Section 84 relates to the inspection books of indebted society and such an inspection can be ordered by the registrar on the application of a creditor society, if he thinks it necessary to inspect. Section 85 is regarding the cost of inquiry and inspection. Section 84 relates to the recovery of the same. Section 87 calls on the Registrar to bring defects disclosed in inquiry and inspection, to the notice of the society and make an order to take such action to remedy the defects, within specified time. Section 88 is a power vested in a Registrar to assess damages against the delinquent promoters etc. This section requires the Registrar to get satisfied on the basis of the report made by the auditor or the inquiry report or inspection report or the report of liquidator, during the course of or as a result of such an audit, inquiry, inspection, or winding up of the society, that any person who has taken part in the organisation and management of the society or the officer of the society that he has misapplied or retained or become liable or accountable for any money or property of the society or has been guilty of misfeasance or breach of trust and thereafter the Registrar or person authorised by him may frame charges against such a delinquent to determine or to contribute such sum to the assets of the society by way of compensation in regard to misapplication, retention, misfeasance or breach of trust. In view of the above scheme of the Act in respect of inquiry. inspection, enquiry, under the various sections as mentioned above, it is clear that the domestic or departmental enquiry against the employee of the society is out of the ambit of the above sections. Section 83 in an enquiry into the constitution, working, financial position of the society and it has to be at the instance of either the registrar of his own motion or on the application of one-third members of the society. The inspection as contemplated under Section 84 is on the application of a creditor society and it has a very limited scope, since it is ordered on satisfaction that the debt is a sum then due against the indebted society of which the payments was demanded but they are not satisfied within a reasonable time. Inquiry under Section 88 is of a quasi judicial nature and it is aimed at to assess the damages as against the delinquents, with a view to determine the compensation in regard to the alleged misapplication, retention, misfeasance or breach of trust. Such an inquiry can be ordered against the persons who have taken part in organisation or management of the society. Precisely speaking, it can be ordered against the office-Bearers and Officers of the society. According to Mr. Mahalle, advocate, the manager being the officer of the society as contemplated under Section 2 (20) of the Act, no other inquiry than that as contemplated under the above provisions of Section 83 to 88 can be ordered. This contention appears to be misconseived since there is no bar or inhibition contemplated under these sections to hold and inquiry in the matters as contemplated under Rule 16 of the Service Discipline and Conduct Rules in respect of the conduct working etc. of the employee. It needs no narration that before the proceedings of surcharge under Section 88 of the Act could be started, it is necessary that the charges to be levelled against the officer will have to be disclosed during the course of audit or inquiry or inspection or in the liquidation proceedings of the society. Until these conditions are satisfied the provisions of Section 88 will not be applicable. The Respondent has not shown that these conditions are satisfied in the instant case. So he cannot under such circumstances validly raise a plea that the Appellant should have taken recourse only to the Enquiry under Sections 83 to 88. In my view, both enquiries are distinct and neither of them create any inhibition or bar for the other. So, the enquiry contemplated under the service Discipline and Conduct Rules has to be read at the exclusion of the provisions of Sections 83 to 88 of the Act, since the intention and purpose of the former has no nexus with the intention and purpose of the latter.


( 12 ) THE Bye-laws No. 15 of the Appellant society provides for appointment of the Manager by the Board of Directors and the Rule No. 16 of the Service Conduct and Discipline Rules entitles the Samiti to suspend or take action against the "sewak". The bye-law No. 12 (5) also provides for appointment, promotion, suspnsion etc. In these circumstances, the office and tenure of the Manager is really one at the pleasure of Board of Directors. Mr. Pa til, Advocate, has referred to Section 16 of the General Clauses Act. This section provides for the power to appoint to include power to suspend or dismiss. In fact the position so far as regard the suspension of a Sewak etc. is very much clear in view of the Rule 16 of the Service Conduct and discipline Rules, read with bye-law No. 12 (5 ). At the cost of repetition it may be stated that "manager" falls within the ambit and general connotation of "sewak" to whom the Service Conduct and Discipline Rules are applicable and it is within the powers of the Samiti to take action against him as contemplated under Rule 16 of the said Rules.


( 13 ) ONCE it is held that the enquiry as against the Manager who is an officer of the society can be ordered under Rule 16 of the Service Discipline and Conduct Rules and he is amenable to those Rules, it follows that he would be subjected to the result of the enquiry. Mr. Pradeep Mahalle, advocate, has assailed the enquiry report and conduct of enquiry also. Since, the Appeal before me is against the Interim Order, I refrain myself from expressing my view this plaint except stating that prima facie it appears that the Respondent was given an opportunity to effectively praticipate in conduct of enquiry and be has already availed the opportunities to do so and the enquiry officer also appears to have followed principles of natural justice. The challenge is raised by Respondent to the conduct and completion of the enquiry and is seeking a declaration to the effect that it is illegal and irregular. The Trial Court has yet to adjudicate the matter finally and it is likely that any assertive opinion at this limited stage of Enquiry before me, may prejudice the proceedings, so I refrain to do so. It may be mentioned at this juncture that non-completion of Department enquiry within 6 months and in absence of the positive provision in bye-laws or Rules to complete it within 6 months, does not vitiate the enquiry. In the case before me, no such provision that such an enquiry has to be completed within 6 mouths is shown to me.


( 14 ) IT was urged that the dispute of the Respondent is out of the purview of Section 91 in view of the proviso to it, since the disputant being covered under Section 2 (k) of Industrial Dispute Act, Mr. Mahalle, advocate, has vehemently refuted this contention of the other side making a reference to Section 2 (k), 2 (s) (iii) of the said Act. According to Mr. Mahalle, Advocate; the Respondent has been appointed and has worked mainly in the Managerial and Administrative capacity and it is evident from reference to the relevant bye-laws namely bye-law No. 15 etc. Admittedly, it appears prima facie that the Office of the Manager is the Office of managerial and Supervisory nature. The Manager is enjoined with the duties and the Responsibilities as mentioned in the bye-law No. 15 which involve the supervision and the Management of the working of the society. Even the intention depicted in the opening sentence of bye-law no. 15 fortifies the fact that the person who is employed as Manager has mainly to do his duties in a Managerial and Administrative capacity to ensure the smooth day-to-day working of the society. Naturally, the Manager cannot be said to be workman as defined in Section 2 (s) (iii) of the Industrial dispute Act. This has an impact to find out whether the dispute preferred by the Manager would be Industrial Dispute as defined under Section 2 (k)of the Industrial Disputes Act. As the definition shows, the Industrial dispute means any dispute or diffence between employers and employers, or between employers and workmen or between workmen, and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. It appears that the Manager in the given case before me, does not fall in any of the categories mentioned in this definition. Moreover, the requirements of the definition of the Industrial Dispute which necessarily is the espousal by union, also appears to be lacking. The law in this behalf is finally settled that dispute between an employer and a single employee, by itself cannot be traced as Industrial dispute, unless it is sponsored or espoused by the Union or by the workmen or by a member of a workmen. Viewing from this angle, it appears that the dispute as is preferred by the Respondent herein is out of the mischief of Proviso of Section 91 of the Act. There is a force in the contention raised by Mr. Mahalle, Advocate, before me and the substantiation thereof could be had from the comparative reading of both these sections referred supra.
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br /> ( 15 ) MR. Mahalle, Advocate, has further contended that the Appellant society is bent upon to terminate the services of Respondent on the basis of the findings of the enquiry officer based on extraneous grounds. Referring to a notice dated 25-12-1990, he further contended that the intention of the appellant society is clear there from. So the disputant has knocked the doors of Co-operative Court for redressal making the prayers of declarations. Mr. Patil, Advocate, has contended that it is a show cause notice and that the respondent has approached the court at a premature stage. The Board of Directors has yet to take the decision whether to terminate the services on the basis of the enquiry report or otherwise. The Enquiry Report is received in the month of November, 1990, and it is competent for the Board of Directors to proceed and take action as called for pursuant to the report. The said notice dated 25-12-90 is placed on record of the dispute. On going through the contents of the same it appears that it is a show cause notice calling upon the respondent to explain within seven days as to why his services should not be terminated on the strength of the guilt proved under certain charges in the enquiry. It is correct to say that the Appellant Society bad yet to take the decision on the basis of that notice. The disputant respondent has pleaded that it is apparent from the notice that the Appellant society is bent upon either terminating or dismissing the disputant on the basis of illegal enquiry pretended to have been completed or conducted. The respondent has prayed for the declaration to the effect that the force of enquiry conducted and completed against the disputant illegal and irregular and has sought permanent restainment against the Appellant society from acting upon the enquiry report. In fact. the consequences flowing from the enquiry report as that of taking a decision in respect of termination of services or otherwise of the respondent are being sought to be restrained. Therefore, it cannot be said that the dispute is premature. Under the attendant circumstances, it appears to be all but necessary for the disputant respondent to seek redressal as sought for and for that purpose the dispute is competent. ( 16 ) HAVING held that for the purposes of the instant Appeal, the action under Rule 16 of Service Discipline and Conduct Rules read with the relevant bye-laws as discussed here-in-before, being competent, it is very difficult to associate with the contention raised by Mr. Mahalle, Advocate, in regard to non-application of the said Rules to the respondent disputant he being the officer of the society. Respondent disputant is a "sewak" to whom the service Discipline and Conduct Rules are applicable and the enquiry under those rules is competent for disciplinary action and not the enquiry under sections 83 to 88 as canvassed by Mr. Mahalle, Advocate. In this view of the matter, the instant Appeal deserves to be allowed and so I proceed to pass the following order : order appeal is allowed. The Order dated 9-1-1991 passed in dispute No. 1/1991 by the Judge, co-operative Court, Amravati, is quashed. Advocate Ingle urges to stay effect and operation of the Order for 15 days. In view of the circumstances explained by Advocate Ingale, the effect and operation of the above order is stayed upto 8-4-1991. Parties to bear their own costs. Appeal allowed.
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