Judgment:
1 C.R.No.411/2011 HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: Hon’ble Shri Justice A.K. Shrivastava Civil Revision No.411/2011 APPLICANT: R.K. Tiwari (Ramakant), aged about 78 years, S/o Trilokinath Tiwari, Retired Deputy Director Handloom, M.P. Rajya Powerloom Bunkar Sangh, Burhanpur, R/o Sindhipura, Sunarpatti, City and District Burhanpur (M.P.) Versus RESPONDENT: State of M.P. Kutir and Gramodhyog Department, Directorate of Hath Kargha (M.P.) Through Officer Incharge, Dept. Direct. Shri A.K. Bhatnagar, Directorate of Hath Kargha, Bhopal (M.P.) Shri Devendra Gangrade, learned counsel for the applicant Shri Santosh Yadav, learned Panel Lawyer for the respondent/State. ORDER
(13.02.2013) 1. This revision application has been filed on behalf of the defendant against the order dated 13.09.2011 by which the learned Additional District Judge, Burhanpur in 2 C.R.No.411/2011 C.S. No.17-B/2011 has rejected the application under Order 7 Rule 11(d) C.P.C. of the defendant-applicant.
2. A civil suit for realization of a sum of Rs.3,10,635/- alongwith the interest from the date of filing of the suit has been filed by the plaintiff-respondent. In the plaint, it has been pleaded that plaintiff is State of M.P. and its one department is Cottage and Village Industries which also carries on the affairs of M.P. Rajya Powerloom Bunkar Sangh Burhanpur (in short Co-operative Society) at the relevant point of time, the applicant-defendant was serving on the post of Managing Director in the said Co-operative Society. In the plaint it has also been pleaded that while discharging the duty of Managing Director of the said Co- operative Society, incontravention to the provisions of M.P. Co-operative Societies Act, 1960 (in short the Co-operative Societies Act) certain amount of bill which was due upon certain firms to whom the cloth was supplied by the Co- operative Society was not recovered and thus the defendant has caused a loss of Rs.3,10,635/-. Hence, by the instant suit, it has been prayed that a decree be passed to realize the sum of Rs.3,10,635/- alongwith the interest.
3. On being served, the defendant filed an application under Order 7 Rule 11 of C.P.C., wherein a specific objection has been raised in para 3 of the application that 3 C.R.No.411/2011 he was appointed on the post of Managing Director in the said Co-operative Society on deputation and during his service period on deputation and after repatriation to his department no dispute was filed under Section 64 of the Co-operative Societies Act. Since the impugned dispute is of management as well as business of the Co-operative Society, only the court constituted under the Co-operative Societies Act can decide the dispute and the civil suit is barred under Section 82 of the said Act. Apart from this, in para 4, it has been stated in the application that a departmental enquiry was initiated against the defendant- applicant in which he was found to be guilty and he was directed to pay a sum of Rs.3,10,635.35 and accordingly, it was directed to realize the said amount from his pension. It has also been averred in the application that the said order was challenged before the State Administrative Tribunal by filing O.A. No.5556/2000 (Ramakant Tiwari Vs. State of M.P. and one another), which was later on transferred to this court since the Tribunal was abolished and after transfer, the said original application was registered as W.P. No.16242/2003 in this Court and vide order dated 20.03.2007, this Court quashed the impugned order dated 30.08.2000 (Annexure A-9 of that petition) and the respondents were further directed to release the pension of the petitioner alongwith the amount which was 4 C.R.No.411/2011 deducted. Thus, after 26 years not present suit cannot be filed.
4. The application under Order 7 Rule 11 of C.P.C. was opposed by the plaintiff by filing a reply on 24.08.2011. The learned trial Court by passing the impugned order has rejected the application. In this manner, this revision has been filed by the defendant-applicant.
5. I have heard Shri Devendra Gangrade, learned counsel for the applicant and Shri Santosh Yadav, learned Panel Lawyer for the respondent/State.
6. Having heard the learned counsel for the parties, I am of the view that this revision deserves to be allowed. It would be condign to quote the application which was filed by the defendant-applicant under Order 7 Rule 11 of C.P.C. (Annexure P-4), which reads thus :- “vkosnu varxZr vkMZj dz- 07 fu;e 11 O;-iz-la- & okLrs nkok [kkfjt djus gsrq ekuuh; egksn;]. 1- izfroknh nkos esa mYysf[kr vof/k esa e-iz- jkT; ikojywe cqudj lgdkjh la?.k cqjgkuiqj esa izfrfu;qfDr ij]. izca/k lapkyd ds in ij inLFk FkkA ¼bls vkxs la?.k dgk x;k gSA½ 2- ;g fd la?.k e-iz- lgdkjh lfefr vf/kfu;e 1960 ds varxZr iath;r lgdkjh lfefr gS]. ftldk dk;Z{ks= laiw.kZ e/;izns'k gSA 3.;g fd izfroknh us izR;{k vFkok vizR;{k :i ls laLFkk dks dksbZ vkfFkZd gkfu ugha igqapkbZ ftldk izek.k ;g gS fd la?. k us izfroknh dh izfrfu;qfDr vof/k vFkok foHkkx esa okilh ds mijkar e-iz- lgdkjh lfefr vf/kfu;e 1960 dh /kkjk 64 ds varxZr dksbZ okn l{ke lgdkjh U;k;ky; esa nk;j ugha fd;kA 5 C.R.No.411/2011 le; vof/k ds ckgj gksus ds dkj.k 26 o"kksZa ckn vc dksbZ okn nk;j ugha fd;k tk ldrkA e-iz- lgdkjh lfefr vf/kfu;e 1960 dh /kkjk 82 ds vuqlkj /kkjk 64 ls lacaf/kr fdlh Hkh fookn ij O;ogkj U;k;ky; esa fopkj fd;k tkuk izfrcaf/kr gSA ;g fd e-iz- 'kklu us izfroknh ds fo:) Lo;a ,d rFkkdfFkr foHkkxh; tkap izkjaHk dh FkhA mDr tkap dks fujLr djus rFkk isa'ku isesaV ds vkMZj ds vuqlkj isa'ku Hkqxrku gsrq izfroknh us ;kfpdk e-iz- jkT; iz'kkldh; vfHkdj.k tcyiqj esa nk;j dh FkhA izdj.k ds fopkjk/khu vof/k esa tkap izfrosnu ds vk/kkj ij e-iz- 'kklu xzkeks|ksx ea=ky; us muds vkns'k dz- 1&83@52&1@91 fn- 30 vxLr 2000 ¼izn'kZ&1½ } kjk izfroknh dks la?.k dks :- 3].10].635-35 dh gkfu igqapkus dk nks"kh ikdj izfroknh dh isa'ku ls LFkk;h rkSj ij 5 izfr'kr jkf'k dkVus ds vkns'k fn;s x;s FksA jkT; 'kklu ds uhfr fu.kZ; vuqlkj izdj.k ek- mPp U;k;ky; tcyiqj dks Lfkkukarfjr gqvkA fjVfiVhlu dz- 16242@03 esa eku- mPp U;k;ky; tcyiqj us muds vkns'k fnukad 20-03-2007 }kjk mDr foHkkxh; tkap dks vLohd`r djrs gq, 'kklu ds lanfHkZr vkns'k dks fujLr dj fn;kA lkFk gh e- iz- 'kklu dks vknsf'kr fd;k x;k fd izfroknh dh isa'ku cgky dh tkosA rFkk 'kklukns'k }kjk dkVh laiw.kZ jkf'k okil dh tkosA ¼izn'kZ&2½ e-iz- 'kklu us mDr vkns'k ds fo:) dksbZ vihy ugha dhA vr% eku- mPp U;k;ky; dh ,dy ihB dk vkns'k vafre ¼Qk;uy½ vkns'k gks x;k gSA 5.;g fd 'kklu ds lanfHkZr vkns'k ls Li"V gS fd :- 3].10].635-35 dh rFkkdfFkr gkfu la?.k dks gqbZ gS]. 'kklu dks ughaA vr% 'kklu i{kdkj cu mDr nkos dks izLrqr djus gsrq l{ke ugha gSA 6.;g fd ekuuh; mPp U;k;ky; tcyiqj us mDr okn dks lekIr dj fn;k gSA vr% O;ogkj lafgrk dh /kkjk 11 ds vuqlkj mDr okn ds fo"k; esa vU; fdlh Hkh U;k;ky; }kjk fopkj ugha fd;k tk ldrk gSaA 7.vkosnd izdj.k dh vko';drk vuqlkj foLr`r tokcnkok izLrqr djus ds vius vf/kdkjksa dks lqjf{kr j[krs gq, vkosnu izLrqr dj jgk gSaA vuqjks/k gS fd 'kklu ds }kjk nk;j voS/k nkos dks [kkfjt djus dh d`ik djsaA cqjgkuiqj -------------------------------------- fnukad %& 10-08-2011 vkosnd 6 C.R.No.411/2011 The reply of said application (Annexure P-5) is also being reproduced in toto, which reads thus :- “oknh]. izfroknh }kjk izLrqr vkosnu i= vk-07fu- 11 O;-iz-lafgrk dk fuEukuqlkj mRrj izLrqr djrk gS %& 1- ;g fd vkosnu dh dafMdk dza-1 dk ;g dFku lgh gS fd izfroknh e-iz- jkT; ikojywe cqudj la?.k]. cqjgkuiqj esa izfrfu;qfDr ij izca/k lapkyd ds in ij fu;qDr fd;k x;k Fkk fdarq ;g fu;qfDr e-iz- 'kklu }kjk dh xbZ FkhA 2.;g fd vkosnu dh dafMdk daz-2 ds bl dFku ls fookn ugha gS fd cqudj la?.k lgdkjh lfefr gS ftldk dk;Z{ks= e-iz- jkT; gSA fdarq e-iz- lgdkjh vf/kfu;e ds izko/kku e-iz- jkT; ikojywe cqudj la?.k cqjgkuiqj rFkk mlds lnL;ksa ij ykxw gksrk gS u fd e-iz- jkT; }kjk fu;qDr izca/kd lapkyd ij ykxw gksrk gSA 3.;g fd tgka rd vkosnu dh dafMdk 3 ds dFku ds laca/k esa dguk ;g gS fd la?.k dks vkfFkZd gkfu izfroknh } kjk igaqpkbZ xbZ ;g rF; o fu.kZ; fnukad 30-08-2000 ds vkns'k ls fl) gks pqds gSA fdarq izfroknh ij e-iz- lgdkjh lfefr vf/kfu;e 1960 ykxw ugha gksrkA izfroknh us iwoZ esa vius fo:) pyh foHkkxh; dk;Zokgh esa Hkh bl ckcr dksbZ dFku ugha fd;s vkSj uk gh mDr vkns'k dks dgh pqukSrh nh Fkh vkSj vr% bl okn dks /kkjk 64 ds izko/kku ykxw gh ugha gksrs tgka rd le;kof/k dk iz'u gS bl ckcr oknh us vius okn i= esa mYysf[kr fd;k gS fd ekuuh; U;k;ky; dks bl okn dks Jo.k djus dk iw.kZ vf/kdkj gSA 4.;g fd vkosnu i= dh dafMdk dza- 4 dk laiw.kZ dFkuksa ds laca/k esa dguk ;g gS fd izfroknh ftl vkns'k dks e-iz- mPp U;k;ky;]. tcyiqj ds vkns'k fnukad 20-03-2007 ds ckcr dFku dj jgk gS og vkns'k e-iz- jkT; ds xzkeks|ksx foHkkx ds vkns'k }kjk e-iz- flfoy lsok ¼isa'ku½ fu;e 1976 ds fu;e 9 ds rgr **isa'ku esa ls 5 izfr'kr jkf'k dh dVkSrh LFkk;h :i ls tek djus** ds ckcr fujLr fd;k gS uk fd foHkkxh; tkap dks voS/k ik;k gS vkSj mDr vkns'k dks fujLr fd;k gSA vr% e-iz- mPp U;k;ky; ds vkns'k dk dksbZ izHkko bl okn dks Jo.k djus esa ck/kk ugha djrkA 7 C.R.No.411/2011 5- ;g fd vkosnu dh dafMdk dza- 5 ,oa 6 dk leLr dFku eux 8. On bare perusal of the plaint this Court finds that the impugned transaction of the business of the Co-operative Society in which plaintiff was the Managing Director, took place in between 22.05.1985 to 30.06.1985 and after 26 years on 01.07.2011 the present suit has been filed. 9. Apart from this, The present applicant was charge sheeted departmentally and he was found to be negligent, as a result of which, the department passed an order directing to realize an amount of Rs.3,10,635/- from his pension. But it was challenged by the petitioner and ultimately the matter was dealt by this court in the aforesaid writ petition and the order to recover the amount from the pension was quashed. It would be appropriate to quote the order of this Court (Annexure P-2), which reads thus :- “20.3.2007 Petitioner by Shri K.K. Trivedi, Advocate Respondents/State by Shri Shailesh Mishra, Advocate. The petitioner by filing this application before the tribunal has challenged the legality and validity of the order Annexure A/19 dated 9 C.R.No.411/2011 30.8.2000 by which the petitioner has been imposed a penalty of withholding his 5% of pension permanently. The petitioner was issued a charge sheet on 15.1.90, copy of which is placed on record as Annexure A/9. The Departmental enquiry could not be completed after issuance of the said charge sheet. Meanwhile, the petitioner by an order Annexure A/3 dated 25.5.90 was directed to be superannuated from services of the respondents. The respondents after the retirement of the petitioner continued the departmental enquiry in pursuance to Rule 9(1) of M.P. Pension Rules, 1976. Ultimately an order was passed on 30.8.2000 which is Annexure A/19 to the petition by which 5% of the pension of the petitioner has been directed to be withheld permanently. Learned counsel for the petitioner submitted that in pursuance to Rule 9 sub rule 4, Proviso-B provides that a departmental enquiry in case initiated against a Govt. servant while in service by issuing a charge sheet then the said departmental enquiry has to be completed by passing a final order within a period of two years from the date the enquiry was initiated. In the present case, the enquiry was initiated on 15.5.90 and the final order was passed on 30.8.2000 which is Annexure A/19 to the petition. Since the final order in terms to Rule 9(2)(a) read with sub rule 4 has not been passed within a period of two years from the date of initiation of the enquiry, respondents have no jurisdiction and authority to pass the order of punishment of 10 C.R.No.411/2011 withholding pension @ 5%. The question as such has been considered by the Division Bench of this Court in the case of State of M.P. and others Vs. R.L. Ogale and others 2006(1) M.P.L.J. 412. The Division Bench under the similar circumstances has decided that the enquiry has to be completed within a period of two years from the date it was instituted and in case no final order is passed within a period of two yeas then the department shall have no authority to pass an order of punishment of withholding pension @ 5%. The judgment so passed by the Division Bench shall have full application in the present case. In view of the law already laid down by the Division Bench as aforesaid, the order dated 30.8.2000 Annexure A/19 is quashed. Respondents are directed to release the pension of the petitioner whatever was deducted along with arrears from the date it was withheld. The pension of the petitioner shall be restored. Petition accordingly stands allowed to the extent above. “ 10. In this view of the matter, I am of the view that since the controversy, which has been raised in the plaint is within the purview of dispute as envisaged under Section 64 of the Co-operative Societies Act and because while serving on the post of Managing Director in the aforesaid Co-operative Society, the defendant-applicant did not realize the said amount, which was alleged to be recovered 11 C.R.No.411/2011 by the aforesaid Co-operative Society, therefore, I am of the view that there was a dispute in regard to management or business in the affairs of the Co-operative Society and therefore, looking to the specific bar under Section 82 of the said Act the instant civil suit is not maintainable. The instant civil suit is not maintainable for another reason also that the order of punishment was quashed by this Court in the aforesaid writ petition and it was directed to release all pensionary benefits, which has already been deducted. The transaction of the Co- operative Society which took place between 22.05.1985 to 30.06.1985, not it cannot be questioned by filing a suit for its realization from defendant-applicant after 26 years as the suit has been filed on 01.07.2011. 11. For the reasons stated hereinabove, this revision application succeeds and is allowed and the impugned order is hereby set aside and it is hereby held that the suit is barred under Order 7 Rule 11 C.P.C. Looking to the aforesaid facts and circumstances, the parties are directed to bear their own costs. (A.K.Shrivastava) Judge gn