Bombay High Court
Sau. Aruna Bhagwant Tiple vs The Divisional Joint Registrar on 25 October, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 3154 OF 2010.
Sau. Aruna Bhagwant Tiple,
Aged 52 years, Occupation - Housewife,
resident of 34-C, Bhosle Nagar, Nagpur
Tq. and District Nagpur.
ig ....PETITIONER.
VERSUS
1. The Divisional Joint Registrar,
Cooperative Societies, Nagpur.
2. The District Deputy Registrar,
Cooperative Societies, Nagpur
Sahakar sadan, Hindustan Colony,
Amravati Road, Nagpur.
3. Chakradhar Swami Nagri Sahakri
Pata Sanstha Limited, Nagpur,
218, Omnagar, Sakkardara,
Nagpur.
4. Shri Prabhakar Harishchandraji Bagawe,
Resident of Old Nandanwan, Near
Hanuman Mandir, Nagpur.
5. Shri Narendrakumar Krushnaji Diwate,
resident of 63, Gurudeonagar,
Nagpur. ....RESPONDENTS
.
::: Downloaded on - 09/06/2013 16:34:18 :::
2
------------------------
Mr. A.H. Patil, Advocate for Petitioner.
Mr. Kankale, Learned A.G.P. for respondent nos. 1 and 2.
Mr. S.G. Shukla, Advocate for Respondent No.3.
-----------------------
CORAM : B.P. DHARMADHIKARI, J.
Date of reserving the Judgment. - 15.10.2010.
Date of Pronouncement. - 25.10.2010.
JUDGEMENT.
By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner - an Ex-Director of respondent no.3- Cooperative Credit Society has questioned her removal dated 11.03.2010 under Section 78[1] of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as "MCS Act" for short) on account of disqualification and dismissal of her appeal under Section 152 of the MCS Act on 24.05.2010. Respondent no.2 has declared her disqualified under the provisions of Section 73-FF [1][vi] of the MCS Act after noticing that she is working as Pigmy Agent for respondent no.3 Society, and hence there was conflict of interest.
2. I have heard Shri A.H. Patil, learned Counsel for petitioner, ::: Downloaded on - 09/06/2013 16:34:18 ::: 3 Shri Joshi, learned A.G.P. for respondent nos. 1 and 2 and Shri S.G. Shukla, learned Counsel for respondent no.3. By consent of parties Rule is made returnable forthwith and matter is heard finally.
3. Shri Patil, learned Counsel appearing on behalf of petitioner has contended that the petitioner is Director and not salaried employee.
For salaried employee, concept of office of profit as specified under Section 73FF [1] is relevant, but then as petitioner is Director of a Credit Cooperative Society and such Society is neither instrumentality of a State or Local Body, the disqualification is not attracted.
4. According to him, the concept of office of profit in so far as disqualification is concerned, can be pressed into service only if such office is held under Government, Municipality or Local Authority to which any pay, salary etc., are attached. The learned Counsel has stated that as the Pigmy agent only earns commission which is neither salary nor remuneration, she is not earning over and above such commission, hence her disqualification is totally unwarranted. To explain scope of office of profit, he has placed reliance upon the judgment of Hon'ble Apex Court reported at AIR 2001 SC 2583 (Shibu Soren .vrs. Dayanand Sahay), AIR 2006 SC 2119 (Jaya Bacchan .vrs.
Union of India ). Infact learned Counsel for petitioner has placed a ::: Downloaded on - 09/06/2013 16:34:18 ::: 4 brief note in writing on this subject. To show to this Court the extent of field occupied by Section 73 FF, he has relied upon the Division Bench judgment of this Court reported at 1987 Mh.L.J. 944 = 1988 All India Coop.Tribunal Journal 1 (Murlidhar Bhaulal Malu .vrs. Sudhakar Honaji Patil and another). He has also urged that the provisions of Section 78[1] and 73 FF of MCS Act, occupy different fields and for said purpose, he has relied upon the judgment of Full Bench of this Court reported at 2009 (6) Mh.L.J. 500 (Narayan Gujabrao Bhoyar .vrs.
Yeotmal Zilla Parishad Karmachari Sahakari Pat Sanstha and others) and Division Bench judgment of this Court reported at 2003 [3] All MR 554 (Narayan Kisanrao Samundre and others .vrs. State of Maharashtra and others).
5. He has urged that in show cause notice, as served upon the petitioner, there was no reference to any failure to comply with the legal requirement or any disobedience and hence, the inquiry as conducted on its strength is bad. Moreover, reply to show cause notice submitted by the petitioner has not been looked into at all and thus there is failure to exercise jurisdiction.
6. Shri S.G. Shukla, learned Counsel for respondent no.3 has relied upon the very same judgment reported in case of Murlidhar ::: Downloaded on - 09/06/2013 16:34:18 ::: 5 Bhaulal Malu .vrs. Sudhakar Honaji Patil and another (supra), to show that importance is given to duty of a person as a Director and his interest which may be against the society. He has further urged that in 1991 LIC 557 (The Management of Indian Bank, Madras .vrs. The Presiding Officer, Industrial Tribunal (Central) Madras and another) as also in 2001 (1) CLR 986 (SC) (Indian Banks Association .vrs.
Workmen of Syndicate Bank and others) Pigmy Agents are held to be employees. The learned Counsel has urged that both the lower Authorities have considered the entire relevant material and as there is no jurisdictional error, the petition deserves to be dismissed.
7. Learned A.G.P. appearing for respondent no.2 has supported the impugned orders. He states that the petitioner is holding the office of profit and show cause notice gave her adequate notice thereof.
Earning of commission as Pigmy Agent by such Director may militate with his/her duties and therefore, action as taken is in accordance with law.
8. Perusal of show cause notice dated 14.01.2010 reveals that it expressly mentions Section 78[1] as also Section 73FF [1][vi] of the MCS Act. It is also mentioned that petitioner is collecting amount towards daily deposits, fixed term deposits and taking commission ::: Downloaded on - 09/06/2013 16:34:18 ::: 6 from respondent no.3 Society. She was therefore called upon to furnish her explanation. The explanation was accordingly furnished by her on 23.02.2010. That explanation as also reply of society is looked into and then impugned order has been passed on 11.03.2010. The order expressly refers to provisions of Section 73FF [1][vi] of the MCS Act, and hence, I, do not find any substance in the grievance of violation of principles of natural justice or failure to exercise jurisdiction.
9. Reliance upon the judgment in case of Shibu Soren .vrs.
Dayanand Sahay (supra) or in Jaya Bacchan .vrs. Union of India (supra) show consideration of concept of office of profit, in the light of the constitutional provision. The word "office" carries with it certain emoluments. It is held to be office, even if the holder thereof chooses not to receive/draw such emoluments. The further reference to these judgments in present circumstances is not necessary. Provisions of Section 73FF [1][vi] of the MCS Act envisage holding of office of profit in society i.e. not in Cooperative Society registered under the MCS Act.
The same therefore, cannot be co-related with any Government or any Local Authority. The petitioner holds office of profit under the respondent no.3 Society, in as much as by working as Pigmy Agent, she is earning commission regularly. Her appointment as Pigmy Agent is in ::: Downloaded on - 09/06/2013 16:34:18 ::: 7 terms of resolution of the Executive Committee of respondent no.3 dated 16.04.2005. Resolution no.6[3], shows that there were applications made by petitioners and other ladies, and thereafter, her appointment as R.D. Agent of Pigmy Agent is accepted. The resolution stipulates that they have to place a security deposit with the society and enter into an agreement and the Executive Committee has recorded that it is agency of society given to petitioner. Agreement executed on stamp paper of Rs.50/- between the Society and petitioner does not mention any date any where, but then it casts some obligation upon the petitioner. Column made for specifying amount of indemnity bond is left blank therein. Column showing amount of security deposit is also blank. Column for date is also blank.
10. Provisions of MSC Act no where define the term 'employee' or 'workman' or 'servant'. In this situation it is apparent that in order to find out that whether there is any master-servant relationship or not, recourse may be required to be taken to provision of labour law or civil law. Control of master and payment of remuneration for work done are the basic ingredients. In judgment in case of Indian Banks Association .vrs. Workmen of Syndicate Bank and others (supra) dispute was between Indian Banks Association and Syndicate Bank.
The Hon'ble Apex Court has considered the status of Pigmy Agents and ::: Downloaded on - 09/06/2013 16:34:18 ::: 8 held that they are workmen under Section 2[s] of the Industrial Disputes Act and commission received by them is wages. This judgment, therefore, is applicable even in present facts. Petitioner by becoming Pigmy Agent of respondent no.3 occupies a position which enables her to receive commission for amounts collected by her for depositing it with respondent no.3 society. Thus she earns profit for herself because of that position. In any case she is covered by first part of Section 73FF [1][vi] of the MCS Act, which disqualifies a salaried employee. These disqualifications are prescribed to maintain purity of cooperative movement. A person occupying any position which may place him in conflict with interest of Society, cannot be permitted to administer the society. The Division Bench of this Court in Murlidhar Bhaulal Malu .vrs. Sudhakar Honaji Patil and another (supra) has emphasized this aspect only. Actual accrual of conflict is not relevant.
The emphasis placed by the Division Bench is on neutrality and impartiality to avoid even likelihood of conflict between interest and duty. The object is held to be secure independence for members of committee and to ensure that such committee does not include persons who are salaried employees of the Society concerned or are in position to influence. In present matter, the other issues resolved by the Division Bench in said judgment are not very relevant. It can be seen that no lacunae can be found in otherwise complete scheme of Section ::: Downloaded on - 09/06/2013 16:34:18 ::: 9 73 FF [1][vi] of the MCS Act. Interpretation to advance the object of provision needs to be accepted. If such assignment or agreement is held out of clutches of Section 73 FF [1][vi], it will create loophole not envisaged in the scheme.
11. The contention that, provisions of Section 78[1] of the MCS Act and Section 73FF [1] of the Act operate in independent spheres, is also not relevant. It is not the argument of petitioner that she cannot be disqualified under Section 78[1] of the MCS Act.
12. In view of this discussion, I find nothing wrong with the concurrent findings reached by respondent no.1 Divisional Joint Registrar and respondent no.2 District Deputy Registrar. Petition is therefore, dismissed with no order as to costs. Rule discharged.
JUDGE Rgd.
::: Downloaded on - 09/06/2013 16:34:18 :::