High Court · 2024
Facts
1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 6908 OF 20211.Aurangabad District Co-operativeSocieties Group Secretaries, Association,Laxmi Apartment, Nirala Bazar, Aurangabad,Through its President,Maroti S/o. Tanaji Jadhav,Age. 52 years, Occu. Service,R/o. Parijatnagar, N-4, CIDCO,Aurangabad, District Aurangabad.2.Vijay Bapurao Fasate,Age. 45 years, Occu. Service,R/o. Bidkin, Taluka Paithan,District Aurangabad.3.Subhash Faulchand Bainade,Age. 42 years, Occu. Service,R/o. Anand Vihar, Paithan Road,Aurangabad, District Aurangabad.4.Pradeep Vitthalrao Harde,Age. 39 years, Occu. Service,Harsool, Aurangabad,District Aurangabad.… Petitioners.Versus1.The State of Maharashtra,Through the Secretary forCo-operation Department,Mantralaya, Mumbai.2.The Commissioner for Co-operationand the Registrar, Co-operative Societies,Maharashtra State, Pune, 2nd Floor, New Central Building,Opposite B.J. Medical College Camp,Pune 411 001.3.The Regional Joint Director,Co-operative Societies,Aurangabad Division, Aurangabad. 2 4.The District Deputy Registrar,Co-operative Societies, Aurangabad,District Aurangabad.5.District Supervisory Committee,C/o. Office of the District Deputy Registrar,Co-operative Societies and The President of DistrictSupervisory Committee, Shakti Sahakar Building,Opposite Kartiki Hotel, C.B.S. Road, Aurangabad.6.Aurangabad Zilla Dekh Rekh Sahakari Sanstha Limited,Aurangabad, Laxmi Apartment, Nirala Bazar,Aurangabad. Through its Secretary.7.The Aurangabad District CentralCo-operative Bank Limited,Adalat Road, Aurangabad,Through its Managing Director. … Respondents.…Advocate for Petitioners : Mr. V.H. DigheAGP for Respondent Nos. 1 to 5 : Mr. N.S. TekaleAdvocate for Respondent No. 6 : Mr. S.B. KakdeAdvocate for Respondent No. 7 : Mr. K.J. Suryawanshi… CORAM : S.G. MEHARE & SHAILESH P. BRAHME, JJ. RESERVED ON : 11 NOVEMBER 2024 PRONOUNCED ON : 19 NOVEMBER 2024JUDGMENT [ Per : Shailesh P. Brahme, J.] :1.Rule. Rule is made returnable forthwith with theconsent of the parties.2.The petitioners seek implementation of directions/orders dated 26.03.2021 issued by respondent no. 3 / RegionalJoint Director, Co-operative Societies, Aurangabad, and also 3 directions for disbursement of arrears of salary to the groupsecretaries in the Aurangabad District.3.Petitioner no. 1 is an Association, espousing the causeof group secretaries who are deprived of arrears of salary despiterepetitive directions issued by the Competent Authority underSection 79 (1) of Maharashtra Co-operative Societies Act, 1960(hereinafter referred to as ‘Act’ for the sake brevity andconvenience). The group secretaries 359 in number are themembers of petitioner no. 1 who are the beneficiaries. Petitionernos. 2 to 4 are the office bearers of petitioner no. 1.4.It is the case of the petitioners that the entitlement ofthe arrears of salary has already been decided by the co-ordinatebench in the matter of Aurangabad District Co-operative SocietiesGroup Secretaries Association Versus The State of Maharashtraand Others, in Writ Petition No. 11124/2010 vide judgment andorder 24.02.2011. The directions given by the co-ordinate benchwere not complied with. The petitioners were required to makerepresentations from time to time claiming disbursement of arrearsof salary. By communication dated 19.09.2019, respondent no. 4 /District Deputy Registrar recommended the entitlement of thepetitioners. Respondent no. 5/Committee also directed respondentno. 7 / Bank to comply with the directions vide letter dated24.03.2021. On 17.03.2021, respondent no. 4 / District DeputyRegistrar requested the Regional Joint Registrar to take stepsunder Section 79 (1) of the Act. Lastly, respondent no. 3/RegionalJoint Director by communication dated 26.03.2021 directedrespondent no. 7 / Bank to comply with the orders of the High
Legal Reasoning
12 26.The facts before the co-ordinate bench are differentthan the facts in the matter at hand. We have already observedthat the entitlement of the members of petitioner no. 1 cannot begone into. The decision of the two co-ordinate benches passed inWrit Petition No. 11124/2010 and thereafter, Writ Petition No.3836/2022 are in favour of the petitioners. They are final andbinding. The petitioners are not disputing the validity of the orderdated 15.03.2022 or the competency to pass the said direction.Considering the facts of the present petition and the observationsrecorded by us, the ratio laid down in Solapur District Co-operative (supra) is not applicable to the present case.27.In view of our discussion, we find that the petitiondeserves to be allowed. Hence, we pass the following order :ORDERi.Respondent no. 7 / Bank is bound by thedirections dated 26.03.2021 issued by respondentno. 3 / Regional Joint Registrar and it shalldisburse the arrears of salary to the members ofpetitioner no. 1.ii.Any disbursement already made byrespondent no. 7 shall be adjusted and the balanceamount be paid by crediting it to the account ofrespondent no. 6 within six weeks from today.iii.In case of failure of a disbursement withinthe prescribed time, the office bearers ofrespondent no. 7 shall be liable to be proceeded 13 with under the provisions of Maharashtra Co-operative Societies Act.iv.Rule is made absolute in the above terms.There shall be no order as to costs.[ SHAILESH P. BRAHME, J. ] [ S.G. MEHARE, J. ]LATER ON :28.After pronouncement of the judgment, learned counselfor Respondent No.7 Mr. Suryawanshi K. J. prays for staying theoperation of the judgment and order pronounced today. He praystime of six (6) weeks for approaching the higher forum. 29.Learned counsel for the petitioners opposes the requestof respondent No. 7. It is submitted that the members ofpetitioner No.1 are waiting for the dues since long and few ofthem have retired and died also. 30.Though we have directed respondent No.7/Bank todisburse the balance amount of arrears of salary of the members ofpetitioner No.1, it is not for the first time this Court is directing theBank to make the payment. On previous occasions also, such atype of directions were already issued. Therefore, we are notinclined to grant time as prayed for by learned counsel Mr.Suryawanshi K. J. However, to avail them to approach higherforum, we think it fit to grant time of three (3) weeks only. Theoperation of the judgment pronounced today shall stand stayed for 14 three (3) weeks and is come to an end automatically after three(3) weeks, without reference to the Court. [ SHAILESH P. BRAHME, J. ] [ S.G. MEHARE, J. ]Thakur-Chauhan/-
Arguments
4 Court passed in Writ Petition No. 11124/2010 and 9525/2010 andto submit the compliance report.5.Learned counsel Mr. V.H. Dighe appearing for thepetitioners submits that respondent no. 7 / Bank is liable todisburse the arrears of salary of the members of petitioner no. 1 inview of the directions dated 06.12.2010. He would submit thatrespondent no. 7 / Bank had preferred Writ Petition No.3836/2022 challenging the directions dated 06.12.2010 as well as26.03.2021 issued Section 79 (1) of the Act. The division benchdismissed the Writ Petition by judgment and order dated22.02.2024. He would submit that having suffered adjudicationtwice, there is no excuse for respondent no. 7 / Bank to deny thepayment of the arrears of salary.6.The learned counsel would also point out the orderdated 22.02.2024 passed in the present Writ Petition. In pursuanceof the said order, it is contended that the petitioners have filedaffidavit along with the chart of break up of the arrears. Themembers those who are in service are entitled to receive Rs. 14.83Crores and Rs. 3.25 Crores for those who are superannuated/diedfrom respondent no. 7 / Bank. It is submitted that respondent no.7 / Bank has failed to comply with the orders of the High Courtand disburse the arrears without any valid reasons.7.Learned counsel further submits that the corrigendumissued to the earlier directions on 15.03.2022 deleting clause 4from the original direction dated 06.12.2010 was prospective. Thereliance is placed on the order passed in the similarly situated 5 claims in Writ Petition No. 9525/2010. It is further submitted thatrespondent no. 7 though received an amount of Rs. 350 Croresapproximately under the loan waiver scheme failed to obey theorders. He tenders on record the rough calculations of the balanceamount of Rs. 20,13,90,665/- as an outstanding amount.8.Respondent no. 7 / Bank is the contesting party andhas filed an affidavit-in-reply. Learned counsel Mr. K.G.Suryawanshi appearing for it submits that the writ petition is notmaintainable as respondent no. 6 is not a State within the meaningof Article 12 of the Constitution of India. It is submitted that WritPetition No. 8049/2015 was on earlier occasion dismissed. It isvehemently submitted that the members of petitioner no. 1 /Association are not entitled to the arrears of salary. There aredisputed questions of facts. It is further submitted that there is noemployer-employee relationship between the members ofpetitioner no. 1 and respondent no. 7 / Bank. Respondent no. 6 /Co-operative Society has engaged the services of the members ofpetitioner no. 1. The service conditions are regulated by the bye-laws of respondent no.6. It is liable to disburse the salary.9.Learned counsel would further submit that videcorrigendum dated 15.03.2022 earlier clause 4 of direction dated06.12.2010 was deleted. In view of the said amended directions,the petitioners are not entitled to receive the arrears of salary. Hewould submit that respondent no. 7 / Bank already credited itscontribution and for that purpose the chart showing the creditingof the amount of Rs. 28.83 Crores is brought to our notice. It issubmitted that respondent no. 6 / Co-operative Society is not 6 disbursing the amount to members of petitioner no. 1 despitehaving corpus in the account. It is further submitted that themembers of petitioner no. 1 have failed to discharge their duties.Some of them are not working and still they are claiming arrearswhich would be unjust enrichment.10.Learned counsel tenders on record the judgmentspassed in the matters of S.S. Rana Versus Registrar, Co-operativeSocieties and Another, 2006 AIR SCW 3723 and Solapur DistrictCo-operative Versus State of Maharashtra, in Writ Petition No.5758/2021. It is submitted that Section 69 A was deleted on14.02.2013 and hence, respondent no. 7 / Bank is not liable. Thenew modalities introduced by direction dated 15.03.2022 are invogue and respondent no. 7 / Bank has been contributing.11.Learned AGP appearing for respondent nos. 1 to 4adopts the submissions of respondent no. 7. He would submit thatthe members of respondent no. 1 are incompetent and failed torecover the loan. After taking the feedback, the new directionswere issued on 15.03.2022 deleting clause 4 of the direction dated06.12.2010. Reliance is placed on the order dated 17.10.2016passed in Writ Petition No. 8049/2015.12.Learned counsel Mr. S.B. Kakde appearing forrespondent no. 6 supports the claim of the petitioners. He adoptsthe submissions of the petitioners.13.We have considered rival submissions of the parties.The short question that falls for consideration is as to theimplementation of earlier directions issued by the co-ordinate 7 bench in Writ Petition No. 11124/2010 vide judgment and orderdated 24.02.2011 followed by the instructions of respondent no.3 / Regional Joint Director issued on 26.03.2021.14.Petitioner no. 1 had filed Writ Petition No. 11124/2010claiming arrears of salary for its members in pursuance ofdirections dated 06.12.2010 issued under Section 79 (1) of theAct. In that petition, reliance was placed on orders passed on14.12.2010 in Writ Petition No. 9525/2010. Respondent no. 7/Bank was held liable to comply with the directions dated06.12.2010 and the petition was disposed of vide order dated24.02.2011. Respondent no. 7/ Bank did not challenge the orderpassed by the Division Bench. It could have raised all grievancesregarding the entitlement of members of petitioner no. 1.Thereafter, directions issued on 06.12.2010 and 26.03.2021 werechallenged by respondent no. 7 by Writ Petition No. 3836/2022.By reasoned order, the said petition was dismissed. The order ofdismissal has not been challenged further by respondent no. 7.15.Having suffered adjudication in Writ Petition No.11124/2010 and thereafter, in Writ Petition No. 3836/2022, it isnot open for respondent no. 7 / Bank to challenge the entitlementof the members of petitioner no. 1 to receive arrears of salary. 16. The objection is raised pertaining to the maintainability of theWrit Petition against respondent no. 7 / Bank as it is not a Statedefined under Article 12 of the Constitution of India. 8 17.Learned counsel for respondent no. 7 referred to thejudgment of the Supreme Court in the matter of S.S. Rana (supra),to buttress the submission that the Writ Petition is notmaintainable. In that matter employee of the Co-operative Societyhad filed a petition before the High Court against the Co-operativeSociety seeking the quashment of termination order andconsequential benefits. In that context, it was held that the Co-operative Society was not a State within the meaning of Article 12of the Constitution of India. 18. The objections of the maintainability of Writ Petitions againstrespondent no.7/Bank could have been raised earlier in those WritPetitions. However, it was never raised. As per the principles ofconstructive res judicata, it is not permissible now for respondentno. 7 / Bank to challenge the entitlement of the members ofpetitioner no. 1 on any count. Both the orders passed by the co-ordinate benches are final and bind respondent no. 7. We,therefore, do not approve the submissions of learned Advocate Mr.K.G. Suryawanshi made in this regard.19.The co-ordinate bench passed the order dated22.02.2024 in the present petition directing the parties to submit achart along with affidavits giving the break-up of the amountclaimed. In pursuance of that, the petitioner has filed an affidavitand claimed Rs. 14,83,82,586/- for the members who are inservice and Rs. 3,25,99,518/- for the retired or dead members,totaling Rs. 18,09,82,104/-. Respondent no. 7 / Bank is bound tocomply with the directions of the co-ordinate benches referred toabove. No excuse can be entertained. It is not open for respondent 9 no. 7 to contend that respondent no. 6 engaged the services of themembers as per their byelaws and it is liable to pay the arrears.Neither can a plea be entertained that the employer-employeerelationship between parties does not exist.20.Learned Advocate Mr Suryawanshi harped upon themodified directions dated 15.03.2022, deleting clause 4 of theearlier direction dated 06.12.2012. The directions issued on15.03.2022 are under Section 79 (1) of the Act. We have gonethrough those directions. Those are prospective. The substantialclaim of the petitioners was since before 15.03.2022. Respondentnos. 1 to 5 also pointed out the circumstances which led to issuethe directions dated 15.03.2022 but that would not deprive therights of the members of petitioner no. 1 which are crystallized bydistinct orders passed by co-ordinate benches. The claimsemerging after 15.03.2022 would be regulated by those directions.21.It is pointed out by Mr Suryawanshi that Section 69 Awas deleted with effect from 14.02.2013 and a new Section 69 Bwas introduced. The deletion of earlier 69 A or insertion of 69 Bwould not affect the entitlement of petitioners. It was open forrespondent no. 7 / Bank to agitate this issue in Writ Petition No.3836/2022. The counsel for respondent no. 7 is unable to pointout from pleadings on the grounds of objections that it was raisedbefore the division bench. Rather it is candidly admitted that thoseobjections including the objection for the maintainability of thewrit petition were not argued. Learned counsel referred toconcluding paragraph no. 10 of the judgment dated 22.02.2024 topoint out that the petition was dismissed on laches without going 10 into the merits of contentions. We are not convinced of thejustification of learned counsel. Respondent no. 7 / Bank couldhave challenged the judgment dated 22.02.2024 passed in WritPetition No. 3836/2022. Now there is no alternative forrespondent no. 7 / Bank than to comply with the directions.22Our attention is invited to the order dated 17.10.2016passed in Writ Petition No. 8049/2015 in the case of KeshavNarayan Kshirsagar Versus State of Maharashtra. It was a petitionfiled by an individual member claiming unpaid salary and theclaim was opposed by the then respondents. It was contended thatthe petitioners had not worked since 19.11.2011 and failed toperform duties. Being a disputed question of facts, the petition wasdismissed. We have already recorded that the entitlement of themembers of petition no. 1 cannot be gone into the presentproceedings. Therefore, considering the difference in the materialparticulars, the order of the earlier bench cannot be madeapplicable. This order would not be an impediment in grantingrelief to the present petitioners.23.There are rival submissions made by the parties on thecount that respondent no. 6 / Co-operative Society has a balanceamount to satisfy the claims of its members. However, we did notcome across any express material indicating that respondent no. 6was given funds or grants to meet the requirement. The benefits ofloan wavered scheme may not be tangible.24.In the present matter, respondent no. 7 is estoppedfrom taking a plea that Writ Petition is not maintainable.Respondent no. 7 / Bank is bound by the directions issued underSection 79 (1) of the Act. Interestingly, the Bank had paid part of 11 the outstanding amount to the petitioners. The present case isunder the provisions of the Maharashtra Co-operative SocietiesAct. Considering the difference in the facts the judgment is of nohelp to respondent no. 7.25.Learned Advocate Mr Suryawanshi also relies on thejudgment of Solapur District Co-operative (supra). Our attentionis invited to paragraphs nos. 17, 21, 24, 25, 29 to 31. Thepetitioner in that matter was also claiming implementation ofdirection dated 06.12.2010. It was opposed on the ground that on15.03.2022 the earlier clause 4 was deleted. By amending thepetition, directions dated 15.02.2023 were also challenged. Beforethe co-ordinate bench predominant submissions were about thevalidity of the order dated 15.03.2022. Ultimately, it was held thatit was permissible for the competent authorities to modify theearlier order dated 06.12.2010 and it was within their competenceto issue order dated 15.02.2022. In conclusion, the following arethe observations :“31.Therefore, there is no merit in the mainchallenge that the order dtd. 15/3/2022 beingcorrigendum cannot modify or clarify thestatutory order issued on 6/12/2010 and that it iscontrary to the orders issued by this Court. Thereis no challenge on the merits of the order dtd.15/3/2022 in the pleadings and the argumentsmade during oral arguments are countered by theRespondents to demonstrate that the order dtd.15/3/2022 is a bona fide exercise of power.”