Madhya Pradesh High Court
Ramesh Sharma vs State Of Madhya Pradesh on 29 May, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
WP.7491.2020.
(Ramesh Sharma Vs. State of M.P. And Others )
WGWALIOR; dated 29.5.2020.
Shri M.P.S.Raghuvanshi, learned counsel, for the petitioner.
Shri Anmol Khedkar, learned GA., for the respondents/State.
Shri Raghvendra Dixit, counsel for the respondent No.4/caveator. In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this petition has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsels through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.
With the consent of parties, the matter is finally heard. Present petition has been filed by the petitioner being aggrieved by the order dated 27.4.2020 passed by respondent No.2 whereby, the petitioner has been placed under suspension.
It is submitted by counsel for the petitioner that respondent No.2 is not having any power, authority or jurisdiction to suspend the petitioner. The petitioner was initially appointed on 19.3.1994 as Salesman in the above cooperative society and he was promoted in the year 1998 as Assistant Manager and subsequently, in the year 2000, he was appointed as Samiti Prabandhak. It is argued that rules namely M.P./Chhattisgarh Ke Jila Sahkari Kendriya Bank Karmchari Sewa (Niyojan, Nibandhan Tatha Unki Karyasthiti) Niyam, 1982 (herein after 2 THE HIGH COURT OF MADHYA PRADESH WP.7491.2020.
(Ramesh Sharma Vs. State of M.P. And Others ) referred as the `Rules of 1982'), are applicable to the case of the petitioner, whereas, Act known as M.P. Co-operative Society Act 1960 (herein after referred as an `Act of 1960'). It is argued that the powers can only be exercised by Sub Committee in terms of Rule 60 of the Rules and the order impugned has been passed by Joint Commissioner, Cooperatives and Administrator DCCB Ltd. Gwalior. It is argued that the respondent no.2 is not having any jurisdiction to place the petitioner under suspension, therefore, the order impugned is per se illegal. Counsel for the petitioner has further drawn attention of this court to document annexure P/3 dated 16.4.2020 which was issued by SDO Dabra in the form of show cause notice to the petitioner which was duly replied by the petitioner and the allegations which are levied against the petitioner were explained by him in his reply. He has further drawn attention of this court to document annexure P/5 dated 19.4.2020 which is the document showing endorsement of senior authority to the effect that on investigation, it was found that there was proper facility of tent, light, soap and sanitizer made by the petitioner during purchase of wheat at Sarla Warehouse. They have taken proper measures for social distancing. Aforesaid document dated 19.4.2020 and the previous order was of dated 16.4.2020. It is argued that the authority was having no reason to place the petitioner under suspension once superior authority has given clean chit to the petitioner. It is further submitted that the order of suspension although being appellable or the petitioner is having 3 THE HIGH COURT OF MADHYA PRADESH WP.7491.2020.
(Ramesh Sharma Vs. State of M.P. And Others ) alternative remedy for the same but the order impugned has been passed by the appellate authority itself, therefore, the petitioner was having no forum to file appeal owing to the fact that the appellate authority itself has passed the order. The aforesaid aspect was considered by the Hon'ble Supreme Court in the case of Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank and Others, 1995 (2 ) SCC 474. It is submitted that if the order impugned is without jurisdiction then the petition under Article 226 is maintainable before this court in view of the law laid down by the Hon. Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks Mumbai and others reported, AIR 1999 SC 22 and Committee of Management and Another Vs. Vice Chancellor and Others, reported in 2009 (2) SCC 630. He has prayed for quashment of the impugned order.
Per contra, counsel for the respondent No.4/caveator has filed reply to the petition and has denied all the allegations made in the petition memo contending that the order impugned has been passed by the administrator of District Co-operative Central Bank and not by its Joint Commissioner. It is argued that there is no board of directors functioning and admittedly administrator has been appointed and in terms of Section 53 (3) of the Act of 1960, administrator can exercise all the powers of board of directors. By filing reply, he has raised specific objection regarding maintainability of this writ petition directly before 4 THE HIGH COURT OF MADHYA PRADESH WP.7491.2020.
(Ramesh Sharma Vs. State of M.P. And Others ) this court. It is contended that the respondent No.2 has passed the order impugned in the capacity of administrator of District Co-operative Central Bank Gwalior and not in the capacity of Registrar. He has drawn attention of this court to the provisions of Section 53 (3) of the Act of 1960 and has argued that Administrator alone is having power to place the petitioner under suspension in the circumstances where there is no Board of Directors in existence or is functioning and there is statutory provision in the Act which provides that the administrator is competent authority to take all possible decisions in the interest of society. It is further contended that though the petitioner is posted in the establishment of respondent No.4 as Samiti Prabadhak, Krishi Sakh Sahkari Sanstha, Dabra, but he is a cadre employee of the District Co- operative Bank, therefore, the Administrator of the said bank would only be competent to place the petitioner under suspension. It is further contended that there is specific provision under Section 55 (2) of the Act of 1960 that the petitioner may file service dispute before Registrar cum Commissioner of Cooperative Society, Bhopal who is having jurisdiction to hear and adjudicate the service dispute and without availing alternative and efficacious remedy, this petition directly before this court is not maintainable and deserves to be dismissed on this ground alone. It is further submitted that once the dispute being raised by bank and specific reply to the notice being filed, there are disputed questions of facts, which cannot be adjudicated under Article 226 of 5 THE HIGH COURT OF MADHYA PRADESH WP.7491.2020.
(Ramesh Sharma Vs. State of M.P. And Others ) Constitution of India by filing a writ petition directly before this court, only remedy available to the petitioner is to file service dispute under Section 55 (2) of the Act of 1960. It is further contended that suspension is not punishment and another statutory remedy of revision is available to the petitioner under Section 77(14) of the Act of 1960 and the revision can be filed before M.P. State Co-operative Tribunal, Bhopal, but the petitioner has not availed any of the alternative efficacious remedies available to him, therefore, this petition is not maintainable and he prayed for dismissal of the writ petition. He has further contended that the order impugned is passed by a competent authority i.e. Administrator, therefore, the case laws relied upon by the petitioner are not applicable in the facts of the case.
State Government is formal party to the petition, therefore, counsel for the State submits that there is no need of filing any reply on behalf of the State and they adopted the reply filed by respondent No.4.
Heard learned counsel for the parties and perused the record. From perusal of record, it is seen that the suspension order annexure P/1 is passed by Administrator of the bank. It is not disputed by the petitioner that Board of Directors is not in existence and is not functioning, therefore, administrator has been appointed to take care of proper functioning of the bank. Section 53 (3) of the Act of 1960 is relevant which reads as under :
"53 (3). The administrator so appointed, shall subject to the 6 THE HIGH COURT OF MADHYA PRADESH WP.7491.2020.
(Ramesh Sharma Vs. State of M.P. And Others ) control of the Registrar and to such instructions as he may, from time to time give, have power to exercise all or any of the powers and to discharge all or any of the functions of the Board of Directors or of any officer of the society and to take all such actions, as may be required in the interest of the society".
Aforesaid provision, specifically provides powers and functions of the Board of Directors to take all such decisions as may be required in the interest of justice, meaning thereby, and once administrator is appointed due to non functioning of Board, the administrator of the bank is having power to take all decisions in regard to an employee like petitioner to place him under suspension. The order impugned is being passed by respondent No.2 in the capacity of administrator and not in the capacity of Registrar. The Act of 1960 prescribes the powers of administrator, accordingly he has power to exercise all or any of the powers and to discharge all or any of the functions of the Board of Directors or of any officer of the society and to take all such actions, as may be required in the interest of society. In view of such statutory provision administrator is competent authority to take all possible decision in the interest of society. Thus, the order is being passed by the competent authority. Under Section 55 (2) of the Act of 1960, the petitioner is having remedy of filing service dispute before Registrar/Commissioner of the Cooperative Societies, Bhopal who is having jurisdiction to adjudicate upon service dispute raised by the petitioner. Even otherwise, the petitioner is having remedy to file revision under Section 77(14) of the Act of 1960 before Cooperative 7 THE HIGH COURT OF MADHYA PRADESH WP.7491.2020.
(Ramesh Sharma Vs. State of M.P. And Others ) Tribunal, Bhopal. Therefore, once it is seen that the impugned order is passed by competent authority, the case law relied upon by the petitioner are not applicable in the facts of the case.
Considering over all facts and circumstances of the case and the provisions of Section 55 (2) of the Act of 1960 as the petitioner is having remedy of filing service dispute before the Registrar, this court does not deem it proper to entertain this writ petition.
This petition is accordingly, dismissed for want of availing alternative remedy available to the petitioner.
Petitioner is directed to comply with the undertaking given by him at the time of filing this writ petition.
CC as per rules.
(Vishal Mishra)
Judge
RAM KUMAR
Rks. SHARMA
2020.06.02
10:16:28 +05'30'