Bombay High Court
The Akola District Central ... vs The State Of Maha., Through Its ... on 5 August, 2016
Author: B. P. Dharmadhikari
Bench: B. P. Dharmadhikari
1 jg.wp4951.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4951 OF 2015
The Akola District Central Co-operative
Bank Limited, Civil Lines, Akola
through its Chief Officer Shri Prashant
Narayanrao Ukande, Aged about 49
years, Resident of Akola, Tahsil and
District Akola. ... Petitioner
// VERSUS //
(1) The State of Maharashtra
through its Secretary,
Department of Cooperation and Textile,
Mantralaya, Madam Cama Road,
Mumbai - 400 032.
(2) The Commissioner and Registrar of
Co-operative Societies, Maharashtra
State, Pune.
(3) District Deputy Registrar,
Co-operative Societies, Akola,
having its office at Sahkar Sankul,
Behind Nagar Parishad School,
Aadarsh Colony, Akola.
(4) Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Amravati.
(5) Shri Vinod Bhujangrao Hingankar,
Occupation - Service, Resident of
Kalwadi, Tahsil Akot, District Akola. ... Respondents
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Shri A. A. Naik, Advocate for the petitioner
Shri N. R. Patil, AGP for the respondent nos. 1 to 4
Shri N. B. Jawade, Advocate for the respondent no. 5
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CORAM : B. P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE : 5-8-2016.
ORAL ORDER (Per : B. P. Dharmadhikari, J.)
In the petition filed under Article 226 of the Constitution of India, the petitioner-District Central Co-operative Bank questions use of section 69B of the Maharashtra Cooperative Societies Act, 1960 by respondents with submission that as Section 69A has been deleted by the Maharashtra Co-operative Societies Amendment Act of 2013, Section 69B cannot survive. The submission is, Section 69A is soul, while Section 69B contains machinery surrounding it.
2. It will be appropriate to note that this is second writ petition filed by the petitioner. Earlier Writ Petition No.3012/2014 filed by petitioner was decided along with Writ Petition No.596/2014 filed by Vinod Bhujangrao Hingankar. Said Vinod is respondent no.5 in the present petition.
3. In Writ Petition Nos.596/2014 and 3012/2014, the controversy was whether Chairman of petitioner-District Central Co-
operative Central Bank Limited can be an ex officio President of District Level Committee formed in terms of the Government Resolution dated ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 3 jg.wp4951.15.odt 01-12-2008 read with subsequent order dated 23-12-2008. Respondent no.5-Vinod in that writ petition was aggrieved by order dated 15-12-2012 passed by the Minister of State for Cooperation and, therefore, had approached this Court. The present petitioner asserts that its Chairman must be the President of District Level Committee. The order was about 2½ years old and, hence, the parties were directed to file their respective submissions before the Hon'ble Minister and the Hon'ble Minister was expected to take fresh decision within six weeks. That decision has been taken on 24-07-2015. Aggrieved by that decision, the present petition has been filed. Hon'ble Minister accepted grievance of respondent no.5-Vinod and directed District Deputy Registrar, Cooperative Societies Akola (present respondent no.3) to assume charge of District Level Committee.
This Court while issuing notice in the matter on 25-08-2015, directed the parties to maintain status quo.
4. Shri Naik, learned Counsel appearing for petitioner has submitted that after parties were relegated to the forum before the Hon'ble Minister, notice of hearing dated 30-06-2015 came to be issued and matter was taken on 08-07-2015. On 08-07-2015, petitioner sought adjournment and accordingly application was moved. The representative of petitioner was given to understand that date will be communicated in due course, but ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 4 jg.wp4951.15.odt without passing any order on adjournment application, matter came to be decided. He submits that petitioner got knowledge of order dated 24-07-2015 afterwards. He also states that finding in impugned order that petitioner was heard is factually incorrect and invites our attention to specific assertion in this respect in paragraph 24 of the writ petition. He also points out that this factual assertion has not been specifically traversed by the respondent. Inviting our attention to the chronology in which Sections 69A and 69B came on statute book, he submits that Section 69B was inserted in 2008 and coexisted with Section 69A till 14-02-2013, when later was deleted. He, therefore, states that Section 69A was in force for several years and all powers including power to regulate pay scales and other service conditions could be read only into Section 69A. Section 69B only conferred consequential or ancillary powers and after removal of Section 69A, since main powers or its source is lost, ancillary or consequential orders cannot be passed. He submits that, therefore, neither State Level Committee nor District Level Committee can be formed under Government Resolution dated 01-12-2008. He contends that because of deletion of Section 69A, Government Resolution 01-12-2008 is itself wiped out. Our attention is invited Ground (F) in the writ petition to demonstrate the prejudice caused to petitioner because of high handedness of District Level Committee insofar as petitioner is concerned.
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5. Affidavit filed by respondent nos.1 to 4 on 16-10-2015 is also relied upon by him to show that there only justification for continuing Section 69B or its role is need to regulate services and wages of existing 7318 Group Secretaries. According to him, this exercise was possible only under Section 69A and 69B cannot be used for that purpose. Section 69A cannot be read into Section 69B and cannot be, therefore, indirectly treated as available through Section 69B. The judgment of Hon'ble Apex Court in T. Sham Bhat vs. Union of India and another reported at 1994 Supp (3) SCC 340, particularly paragraph 21 is pressed into service to demonstrate how in similar situation when many or substantive provisions were found obliterated, the Hon'ble Apex Court has held that machinery provisions cease to exist. The judgment of Hon'ble Apex Court (Constitution Bench) in State of W.B. vs. Kesoram Industries Ltd. and others reported at (2004) 10 SCC 201, particularly paragraph 138 is relied upon to submit how in such situation, Courts have to interpret the statutory provisions.
6. Shri Patil, learned A.G.P. in reply points out Section 69A was introduced in the Maharashtra Cooperative Societies Act way back in 1975 and since then the concept of Group Secretaries is legally recognized. He also mentions that Group Secretaries existed even prior thereto, but then ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 6 jg.wp4951.15.odt was not in position to substantiate the said contention in absence of necessary affidavit or document on record. He points out that in 2008, when Section 69B was added, in one sub-section i.e. sub-section 7 came to be added to Section 69A. As cadre of Group Secretaries is already created and about 7318 Group Secretaries are in that cadre, though the provisions of Section 69A have been deleted, cadre itself could not have been done away with. He is relying upon the previsions of Section 7(c) of the Bombay General Clauses Act to support his contention that obligation already incurred or rights of the parties created are protected though Section 69A may have been deleted. To explain how amendment to a statute which results in deletion of a particular provision needs to be construed he is drawing support from observations of the Apex Court in paragraphs 17 and 18 of its judgment in Bhagat Ram Sharma vs. Union of India and others reported at 1988 (Supp) SCC 30.
7. The functions of District Level Committee prescribed in Government Resolution dated 01-12-2008 are read out by him with submission that as large number of Group Secretaries exist, these functions need to be performed.
8. In brief reply, Shri Naik, learned Counsel for petitioner submitted that efforts of respondents are to explain the need for and scope ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 7 jg.wp4951.15.odt of power available to them under Section 69B. Said powers can never travel to and cover within itself the powers exercisable under Section 69A.
He, therefore, adds that in the wake of deletion of Section 69A, Section 69B cannot stand independently and must be also declared as deleted.
9. Perusal of judgment of Hon'ble Apex Court in the case of State of W.B. Vs. Kesoram Industries Ltd. and others reported at (2004) 10 SCC 201, paragraph 138 reveals that words used by legislature in a statute need to be understood by keeping in mind the fact that selection thereof is with due deliberation and to give its effect to its intention. Each word therefore, must be given its due meaning. If in definition clause, such words have been given any meaning that meaning or otherwise their ordinary meaning by referring to dictionaries, therefore, must be gathered.
Interpretation which avoids conflict between two fields of legislation and would achieve homogeneity needs to be preferred. Object of the scheme of law should also be kept in mind.
10. Perusal of judgment of Hon'ble Apex Court in the case of T. Sham Bhat Vs. Union of India and anr. reported at 1994 Supp (3) SCC 340 {TC "13331"}, paragraph 21 reveals that there, Hon'ble Apex Court has considered amending clause of IAS Second Amendment Regulations.
In earlier paragraphs, it concluded that Regulation 2 thereof violated ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 8 jg.wp4951.15.odt Article 14 and 16 of the Constitution of India. It found that Regulation 2 constituted soul of these Regulations, provided for eligibility of non-State Civil Service officers, for their selection to the Indian Administrative Service. Other provisions contained in said Regulation are found to be machinery provisions intended to implement the said Regulation no. 2.
Hon'ble Apex Court, therefore, found that those Regulations could not have existed independent of Regulation no. 2.
11. In the case of Bhagat Ram Sharma Vs. Union of India and ors. reported at 1988 (Supp) SCC 30, in paragraph nos. 17 and 18, Hon'ble Apex Court has taken note of legislative practice that while deleting existing provision, new provision is substituted. It found that this has the effect of repeal of the existing provision and introduction of a new provision. It has then concluded that there is no real distinction between 'repeal' and an 'amendment'. It has found that amendment is a wider term including abrogation or deletion of a provision in an existing statute. If the amendment of the existing law is small, the Act professes to amend, if it is extensive, it repeals a law and re-enacts it.
12. In present matter, Section 69A has been deleted while Section 69B continues to be in statute book. We have to examine whether Section 69B can be construed as a machinery provision and, therefore, it cannot ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 9 jg.wp4951.15.odt stand by itself i.e. because of repeal of Section 69A, it must be presumed to be repealed. Section 69A constitutes a Co-operative State Cadre of Secretaries of primary agricultural credit societies, multi-purpose co-
operative societies and service co-operative societies. This cadre has been referred to as Co-operative State Cadre. Cadre consists of persons recruited for this purpose by Central Societies to be notified by the State Government. Number of persons to be recruited, their conditions of service are to be determined by the Central Societies only. Thus, a cadre of Group Secretaries has been brought into effect by Section 69A(1). By sub-section (2), Central Society has been empowered to depute persons appointed by it to that cadre to work under any of the societies. Vide sub-section (2A), the immediate supervisory control of such Group Secretaries is with Taluka Supervision Society consisting of the societies in each respective Taluka to which such Group Secretaries are deputed. Vide sub-section (3), a fund has been established by name "the Co-operative State Cadre Employment Fund". There is a deeming fiction and its creation has been made effective from 1 st day of July, 1973. Salaries and expenses of Group Secretaries are to be defrayed through this fund. As per sub-section (4), societies deriving benefits directly or indirectly from the services of Group Secretaries or then any other body corporate deriving such benefits, have to contribute annually to the above mentioned fund a ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 10 jg.wp4951.15.odt specified sum from 1st day of July, 1977. Under sub-section (5), there is a provision for recovery of such contribution. Sub-section (6) enables State Government to make rules regulating all matters connected with or ancillary to the custody and maintenance of, the payment of moneys into, and the expenditure and withdrawal of moneys from said Co-operative State Cadre Employment Fund. Sub-section (7) introduced later on exempts co-operative credit structure entity from operation of Section 69A.
Co-operative credit structure entity has been defined in Section 2 of the Maharashtra Co-operative Societies Act and for present purpose, it is not necessary for us to look into that definition. Section 69B is for constitution of District and State Level Committees. The State Government has been empowered to constitute District Level Committees and State Level Committee from time to time as and when it felt necessary for solving the problems of Group Secretaries in the State. Thus, problems faced by Group Secretaries were to be solved by such Committees and State Government has been empowered to form such Committees as and when occasion, therefore, was felt.
13. When Sections 69A and 69B are read together, it is seen that both occupied different fields. The salaries and other expenses and service conditions are to be provided for under Section 69A and for resolving ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 11 jg.wp4951.15.odt problems faced by Group Secretaries, it is open to State Government to constitute Committees as specified in Section 69B. The said Committee under Section 69B, therefore, cannot and could not prescribed service conditions. Both provisions, while existing together, were complimentary to each other. But then the scope or nature of problems faced by Group Secretaries can not be determined with reference to Section 69A only.
14. It is not in dispute and State Government has placed on record in its reply the fact that when Section 69A was deleted in 2013, in cadre of Group Secretaries, 7318 Group Secretaries existed. The State Government has stated that to solve the problems of these 7318 Group Secretaries, arrangement under Section 69B is needed and, therefore, State Government felt that said arrangement should continue till retirement of all existing Group Secretaries. It is further specified that State Government would take decision about fate of Section 69B at appropriate juncture.
15. Section 69A as mentioned supra, therefore, constitutes a Co-
operative State Cadre Employment Fund from 1-7-1973 i.e. retrospectively. The co-operative societies and even body corporates have been asked to contribute to said fund from 1-7-1977. For the purposes of this provision, such corporate body though not a corporate society has been subjected to the provisions of the Maharashtra Co-operative Societies ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 12 jg.wp4951.15.odt Act. Taluka Supervision Societies have also been brought into life by it.
These provisions, therefore, show that a permanent arrangement was envisaged by Section 69A and it was accomplished by providing a cadre of Group Secretaries for recruitment thereto and for regulating their service conditions. The immediate control and supervision of such Group Secretaries working with various societies was entrusted to Taluka Supervision Society. Such Taluka Supervision Society is to consist of societies in each respective Taluka to which Group Secretaries are deputed and such societies taking benefit are the members of Taluka Supervision Society. Taluka Supervision society was to be registered for this purpose.
Hence, Section 69A (2A) also formed Taluka Supervision Societies for supervising work of Group Secretaries deputed to its member societies. At this stage, it is brought to notice of this Court that in exercise of powers under sub-section (1) of Section 69A, State Government has later in 1987 prescribed Taluka Supervision Society to be a Central Society for the purpose of sub-section (1) and (2) thereof. It is to be noted that a Co-
operative Society therefore, by name, Taluka Supervision Society has been brought into existence by Section 69A (2A) in each Taluka in State of Maharashtra. Thus Group Secretaries recruited thereto and Taluka Supervision Societies registered for supervising their work continue though Section 69A has been deleted. Similarly, the fund created under sub-
::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 :::13 jg.wp4951.15.odt section (3) of Section 69A also continues. Petitioner do not demonstrate that these Taluka Societies or their fund as the cadre have ceased to exist.
16. Net result, therefore, is the arrangement as in force because of Section 69A has to continue for 7318 Group Secretaries. There cannot be new recruitment and the cadre of Group Secretaries, therefore, becomes a dying cadre. The State Government has, therefore, correctly stated that in the backdrop of this situation, through Section 69B, it has to take care of that cadre till retirement of existing Group Secretaries.
17. The problems of Group Secretaries envisaged in Section 69B need to be understood in the light of scheme of Section 69A when both provisions existed together. Their service conditions or other factors taken care of in Section 69A could not have been altered under Section 69B.
However, situation changes when Section 69A is omitted from statute. As noted supra, certain irreversible events have occurred under Section 69A and those have to continue till retirement of last Group Secretary. Section 69B is, therefore, retained in statute book to meet this situation i.e. problems of existing Group Secretaries after it has become a dying cadre.
The State Government may also take other appropriate steps, legislative or otherwise, to resolve the situation. But decision of legislature to maintain Section 69B in statute book can not be faulted with. Deletion of Section ::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 ::: 14 jg.wp4951.15.odt 69A all the more justifies insistence of respondents on its presence.
Problem of Group Secretaries emerging under Section 69A may surface with more rigour in its absence. Contention of non-application of mind by a legislature body is not substantiated here. Precedents cited by the parties do not have any bearing on this aspect. Challenge to order of minister is given up by the petitioner.
18. Legislative wisdom can be judicially examined by this Court only in very limited contingencies. Here no such case is made out. We therefore, find that contention that Section 69B is only a machinery provision is unsustainable. No case is, therefore, made out warranting interference. Writ petition is dismissed.
Rule is discharged.
JUDGE JUDGE
waghmare-wasnik
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