Bharat Tukaram Bhalke, Chairman, Shree Vitthal Sahakari Sakhar Karkhana Limited and ors. Vs. the Regional Joint Director of Sugar, Pune Division, - Court Judgment

Excerpt:
- - 1 not satisfied by the turn of events, again issued a third show cause notice under section 78. the said notice is based on the alleged complaint dated 6th may 2009 made by navnath narhari ghadage and others. 8. it is interesting to note that in the said complaint the complainant has not given any particulars, namely the date of advance, amount of advance and when it was repayable. in fact an officer like the regional joint director of sugar is expected to protect the co-operative movement and the sugar factories from the onslaught of unfounded and baseless allegations.s.b. mhase, j.1. rule, with the consent of the parties made returnable forthwith and heard.2. the petitioners who are the directors of the vithal sahakari sakhar karkhana limited situated at pandharpur, district: solapur have approached this court challenging the show cause notice issued by the respondent no. 1 who is the regional director of sugar, pune division, pune. the said notice has been issued by the respondent no. 1 under section 78 of the maharashtra co-operative societies act, 1960 [for short 'the said act.'].3. we are constrained to interfere in the matter at the stage of show-cause notice in view of the peculiar facts and circumstances of the case and on account of the conduct of the respondent no. 1 and the manner in which the matter is being dealt with under section 78 of the said act. the respondent no. 1 who is the regional joint director of sugar, pune division is joined as a party respondent by name.4. the facts disclose that the first show cause notice under section 78 of the said act was issued by the respondent no. 1 on the petitioners on 7th july 2008. the allegations in the said notice were to the effect that the petitioners were the directors of the said karkhana and the said karkhana had given an advance to one vitthal sarvseva seva sangh and the said sangh had given an advance of rs. 2 lacs to the son of the one of the directors, namely shri. mahadev chavan, and the said advance was given in connivance with the said karkhana, and since it is not repaid, the petitioners have incurred a disqualification. the same notice has been issued to other petitioners also.5. against the said notice dated 7th july 2008 the petitioners approached this court by filing writ petition no. 6844 of 2008 challenging the said show cause notice and also sought the protection that in case any adverse order is passed by the respondent no. 1, the same shall not be executed for a period of two weeks.6. it appears that thereafter on 14th january 2009 another show cause notice under section 78 of the said act was issued by the respondent no. 1 on the basis of the audit report. the said notice was also challenged by the petitioners by filing writ petition no. 1960 of 2009. by order dated 4th february 2008, the said petition was disposed of with the direction that in case any adverse order is passed in respect of the said notice, the said order shall not be implemented for a period of two weeks from the date of service of the order on each of the petitioners. as can be seen the petitioners were subjected to two show cause notices which resulted in the petitioners approaching this court, and this court granting protection to the extent mentioned hereinabove.7. it appears that the respondent no. 1 not satisfied by the turn of events, again issued a third show cause notice under section 78. the said notice is based on the alleged complaint dated 6th may 2009 made by navnath narhari ghadage and others. the said show cause notice was issued on 20th may 2009 making the same allegations as were made in the first show cause notice dated 7th july 2008. the complainant in the said complaint has stated that the said karkhana has transferred the amount to the vitthal sahakari servaseva sangh maryadit, which is a trust registered under the bombay public trust act, 1950. the said trust carries out the harvesting and transport of sugar cane for the karkhana and is a separate entity, being registered under the bombay public trust act, 1950. the amount has been transferred by the karkhana to the said sangha/trust so as to advance the amount to the transporters and harvesting labourers. the grievance is made that the said trust has given advances to the petitioners and their relatives and since the said advance has not been repaid, the petitioners have incurred disqualification under section 73ff of the said act.8. it is interesting to note that in the said complaint the complainant has not given any particulars, namely the date of advance, amount of advance and when it was repayable. in what manner the directors of the said karkhana incur disqualification under section 73ff of the said act if the business is carried out by the trust has not been explained. surprisingly when the application was bereft of any particulars and as blissfully vague as possible, the respondent no. 1 accepted the said application on 6th may 2009 and made an endorsement on it to issue notice under section 78 of the said act. the said endorsement appears to be made on the same day. thereafter the respondent no. 1 concluded the enquiry into the first show cause notice dated 7th july 2008 wherein the petitioners have raised the objection that the sugar factory and the trust are different entities and therefore the enquiry under section 73ff read with section 78 is misconceived, as the provisions of section 73ff and 78 of the said act were not attracted. the respondent no. 1 upheld the contention of the petitioners and has held in the order dated 24th june 2009 that the said trust and the karkhana being separate entities, the petitioners cannot be said to have incurred any disqualification on account of the non repayment of the amount, if any, owed by them to the said trust. thus, from 24th june 2008, the legal position was clear to the respondent no. 1 that since the trust and the sugar factory are different entities in law, the provisions of sections 73ff and 78 of the said act could not be attracted. therefore, when he passed the order dated 24th june 2009 in favour of the petitioners, simultaneously he should have passed the order withdrawing the impugned notice dated 20th may 2009. instead of that, it is surprising to note that the respondent no. 1 is prosecuting the said notice dated 20th may 2009 in all seriousness. the respondent no. 1 has also filed an affidavit-in-reply justifying the said notice. the conduct of the respondent no. 1 is, therefore, uninspiring and lacks bonafides.9. a perusal of the complaint discloses that the same was received by the respondent no. 1 on 6th may 2009 and without even a preliminary enquiry he decided to issue show cause notice, an endorsement to that effect is made on the complaint. it is pertinent to note that though the respondent no. 1 has held in the order dated 24th june 2009 that the trust and the karkhana are different entities, he has not chosen to withdraw the impugned notice, as it appears that he is proceeding with a predetermined mind. we therefore find substance in the allegation of the petitioners that the whole exercise is malafide and being done for extraneous reasons.10. what is significant and disturbing is that when the above petition was being heard for admission and a suggestion was given by the court to the learned government pleader appearing for the respondent no. 1 to withdraw the said notice in view of the finding recorded by the respondent no. 1 in the order dated 24th june 2009, the respondent no. 1 was adamant enough to instruct the learned government pleader that the court should pass an order and that he would not withdraw the said notice. this shows that the respondent no. 1 is bent upon to harass the petitioners by hook or by crook. in fact an officer like the regional joint director of sugar is expected to protect the co-operative movement and the sugar factories from the onslaught of unfounded and baseless allegations. he is supposed to regulate the working of the sugar factories and is not supposed to put spokes in the working of the sugar factories as is done in the present matter by issuing notice after notice without any preliminary enquiry as required by law. in the conspectus of the facts as mentioned above, we are of the view that the impugned show cause notice which has been issued by the respondent no. 1 is actuated with malafides and has been issued by the respondent no. 1 so as to harass the petitioners. the respondent no. 1, it seems, is following an agenda and thereby misusing his office. in the light of the findings recorded by him in the order dated 24th june 2009, we are of the view that there is no warrant for him to proceed with the impugned show cause notice dated 20th may 2009. taking this view of the matter we quash the impugned show cause notice issued by the respondent no. 1 and the respondent no. 1 is hereby directed not to proceed with the enquiry commenced pursuant to the said show cause notice.11. in respect of the enquiry which has been initiated by the respondent no. 1 and which is pending before him, since we have noted that the conduct of the respondent no. 1 is actuated with malafides, we deem it appropriate to direct the commissioner of sugar to transfer the pending enquiry in respect of the second notice dated 14th january 2009 to some other regional director and we further direct that the respondent no. 1 should not be allowed to carry on with the said enquiry.12. since we have noted that the respondent no. 1 is actuated with malafides and has transgressed his powers and has misused the powers under section 78 and thereby has committed a misconduct in the exercise of his official duties, we direct the commissioner of sugar and secretary of the co-operative department to initiate appropriate departmental enquiry against the respondent no. 1 namely, shri. d.r. ghode. the said enquiry should be completed within a period of six months and the report of such enquiry shall be submitted by the secretary of the co-operative department and the commissioner of sugar to this court.13. rule is accordingly made absolute in the aforesaid terms.